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Driving whilst using Mobile
Ben Roles
post Mon, 31 Aug 2020 - 19:09
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Hi All,

Long time since I've used this forum! Over the bank holiday weekend I was stopped by a police officer. Circumstances as follows:

- I have my iphone securely attached to my windscreen / top dashboard by a mount
- I find myself in a situation where I need to call somebody so click once to come out of Google Maps to enter contacts. Click again to select an individual to make a call
- This I choose to do having just had lights turn to red in front of me on a controlled roundabout (so knowing I have time to carry out this action)
- By the time the lights are green I am away from the device
- At no time did the device leave the mount / cradle
- At no time did I have any control issues (I am effectively stationary at the lights).

I am pulled by a policeman who says he saw my do the above. I concur. He says the law has changed and you are not allowed to touch a device at all no matter where it is. I query this and say it was in my cradle which I understood to be allowed but he dismisses this.

He is with a trainee as there is a lot of conversation around how to do a license check etc. I wait in my car and am told although everything checks out because they "saw me do it" I will be reported for "use of a mobile phone". The new policeman completes a paper TOR. I have not been given any paperwork at all. A verbal NIP was read.

Obviously I will have to wait and see what happens but this seems wrong if they proceed with using a mobile phone (6 points, £200 FPN or more in court).

Specific legislation as I understand:

https://www.legislation.gov.uk/uksi/2003/26...gulation/2/made

Specifically references hand-held and defines this in the regulation as needing to be held to use functions etc. At no point do I 'hold' the phone etc.

Similarly the government's own website states a cradle IS an acceptable option for using a device.

https://www.gov.uk/using-mobile-phones-when-driving-the-law

Obviously I will have to wait and see what comes through, but I am sure it will be offer of a FPN. I am tempted to fight in court...

- 1) Is my reading of the legislation going to hold water? Recognise it will be somewhat based on the court's interpretation
- 2) Any case law or known examples where this has been shown to be acceptable (i.e. use of a cradle allowed)
- 3) Is my reading right that even in court worst case is just more of a fine (still 6 points)? Realise disqual. is an option but it is unlikely to go that way...


At no point did the policemen say anything about being out of control, having poor visibility etc. (which I understand is a lesser charge that could have been chosen).

Thoughts and advice warmly received! I appreciate judgement wise it may not have been sensible, but it was certainly a controlled decision (I was at lights) and it seems galling I may end up in the same boat as someone who literally drives with the phone to their ear...

Thanks!

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post Mon, 31 Aug 2020 - 19:09
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andy_foster
post Mon, 31 Aug 2020 - 20:02
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The occifer was full of shit mistaken regarding the law. The specific offence is of using a hand held mobile phone for interactive communication. Using a mobile phone (hand held or otherwise) could potentially cause another offence to be committed - e.g. careless or inconsiderate driving - but the required elements appear to be missing in your case.


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Suziboy
post Mon, 31 Aug 2020 - 20:18
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This might be helpful: https://www.askthe.police.uk/content/Q955.htm

Relevant excerpt:

"The use of a hand-held phone or a similar hand-held device while driving is against the law. A hand-held device is something that is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function. Provided that a phone can be operated without holding it, then hands-free equipment is not prohibited by this legislation. Therefore, the use of a phone as a sat nav is lawful providing you don't have to hold it.

"Pushing buttons/touching a phone while it's in a cradle or on the steering wheel or handlebars of a motorbike for example is not covered by the above offence, provided you don't hold the phone."
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Logician
post Mon, 31 Aug 2020 - 22:40
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The only recent change in the law is that the courts have clarified that the mobile phone offence is committed only if the phone is being used for interactive communication and not for any other purpose. What made the officer think as he did we cannot tell, but he was entirely wrong.


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speedfighter23
post Tue, 1 Sep 2020 - 07:33
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The way I see it you can quite clearly challenge the Police Officer in court by saying that you did not hold the phone at any time, so cannot be guilty of that offence and cross examine the Police Officer.

The only thing they can perhaps get away with is careless driving "driving without due care and attention" if the officer says you were playing with the device on the cradle and not concentrating on the road, but they would have to charge you with that first!

Don't let them get away with this, as 6 points is a lot.

This post has been edited by speedfighter23: Tue, 1 Sep 2020 - 07:34
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Ben Roles
post Tue, 1 Sep 2020 - 08:09
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Thanks for all the feedback. Agree if there was some 3-point penalty potentially fair enough, but 6 seems harsh. I can see for the 'crime' it's probably fitting (since driving round with a phone to your ear etc. is 100% not acceptable). But for this it feels like the wrong charge.

As I say, at present I wasn't even given any TOR paperwork (going to wring Cambs Constab today to see what their process is / should be) and then will wait and see what comes through.

Will post again on this thread at that date.

I'll likely represent myself in court so might need some assistance at that point, but as per my first post I think I've collated the right legislation etc. and things like the police's own website (as suziboy posted) are useful interpretations.

Thanks again - will write again when I know more!
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mickR
post Tue, 1 Sep 2020 - 08:20
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QUOTE (speedfighter23 @ Tue, 1 Sep 2020 - 08:33) *
The only thing they can perhaps get away with is careless driving "driving without due care and attention" if the officer says you were playing with the device on the cradle and not concentrating on the road, but they would have to charge you with that first!


And somewhat more difficult to prove if op was stationary at lights rather than while moving. Imo

This post has been edited by mickR: Tue, 1 Sep 2020 - 08:20
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The Rookie
post Tue, 1 Sep 2020 - 08:21
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There are three possible offences (you've not yet been charged of course)
1/ Using a mobile hand held wrong charge for the reasons discussed, points are fixed at 6
2/ Driving without due care and attention - IF found guilty it would be a low level offence 3-points
3/ Otherwise than in a position for proper control - as with DWDCA.

2 choices as I see it
1/ Let it run it's course, hope your charged with 1 and make them look a little silly in court.
2/ Contact the officers supervisor, explain that he needs 're-training' and why and hope they drop it rather than perhaps go with 2 or 3.


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TMC Towcester
post Tue, 1 Sep 2020 - 08:28
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2 & 3 above would seem difficult ones to 'stick' as the OP was stationary at red lights at the time so there would have been to erratic movements etc etc. Proving it, might not be as easy, particularly as there were two officers (at least).

Well worth a defence though!
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Suziboy
post Tue, 1 Sep 2020 - 08:45
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Just to add that DWDC can also attract an offer of a 'What's Driving Us?' course (i.e. no points and no impact on insurance premiums).

I did this course back in summer 2018, and a couple of the other attendees mentioned they were doing the course for mobile-related offences. The course instructor was surprised they'd been offered the course, as the new 6 point / £200 fine penalty had already been introduced at that time.

Turned out that both attendees had been observed 'handling' the devices while in stationary queues of traffic (one stated that he was actually fitting it into its cradle at the time he was observed). The officers who pulled them could not prove the phones were actually being used for communication.
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rosturra
post Tue, 1 Sep 2020 - 08:50
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QUOTE (Ben Roles @ Tue, 1 Sep 2020 - 09:09) *
As I say, at present I wasn't even given any TOR paperwork (going to wring Cambs Constab today... )


Understandable, but is adding assault to your charges wise?



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Mayhem007
post Tue, 1 Sep 2020 - 09:06
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QUOTE (Ben Roles @ Tue, 1 Sep 2020 - 09:09) *
As I say, at present I wasn't even given any TOR paperwork (going to wring Cambs Constab today to see what their process is / should be) and then will wait and see what comes through.


Don't poke a sleeping bear with a stick


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cp8759
post Tue, 1 Sep 2020 - 10:16
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QUOTE (The Rookie @ Tue, 1 Sep 2020 - 09:21) *
There are three possible offences (you've not yet been charged of course)
1/ Using a mobile hand held wrong charge for the reasons discussed, points are fixed at 6
2/ Driving without due care and attention - IF found guilty it would be a low level offence 3-points
3/ Otherwise than in a position for proper control - as with DWDCA.

2 choices as I see it
1/ Let it run it's course, hope your charged with 1 and make them look a little silly in court.
2/ Contact the officers supervisor, explain that he needs 're-training' and why and hope they drop it rather than perhaps go with 2 or 3.

The Rookie sums it up nicely and I would definitely just let it run its course. If you point out that charge 1/ cannot possibly stick, they might think of changing the charge to 2 or 3. If you do nothing and they carry on regardless, there's a much better chance they'll only realise their error when it is pointed out in court, at which point the 6 month time limit will likely have expired and it will be too late to amend the charge.


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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.
Section 6 of the Interpretation Act 1978 applies to everything I post as it would apply to an Act of Parliament.
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Ben Roles
post Tue, 1 Sep 2020 - 10:41
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Thanks for the further comments. Had exactly the same thoughts on detailing to them now why 1) won't work. As in leave it so they cannot charge with something else.

I used live chat this morning and was given an email address I could write to with respect to getting the TOR paperwork.

With the "sleeping bear" comment though am I best just to do nothing yet? I suppose I don't really need the TOR as it's not really that important until they write again?

This post has been edited by Ben Roles: Tue, 1 Sep 2020 - 10:42
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The Rookie
post Tue, 1 Sep 2020 - 10:41
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I wouldn't do anything right now. It's possible he realised his mistake and has not filed any paperwork, I would only contact them if/when you hear something.


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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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Ben Roles
post Tue, 1 Sep 2020 - 10:43
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Cross post (I edited my original). Yes understood. Certainly he had a white pad he completed everything, I signed and he read the NIP.

But seemingly I am just best to see what follows?

Thanks.
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Mayhem007
post Tue, 1 Sep 2020 - 11:41
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QUOTE (Ben Roles @ Tue, 1 Sep 2020 - 11:43) *
Cross post (I edited my original). Yes understood. Certainly he had a white pad he completed everything, I signed and he read the NIP.

But seemingly I am just best to see what follows?

Thanks.

Hopefully he wrote down your comments, as they are very valid points and you have not incriminated yourself.


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Ben Roles
post Tue, 23 Feb 2021 - 10:18
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Hi all - wanted to write on my original thread as I believe is protocol here... So it's ALMOST 6 months since I wrote the above (I really hope I am not tempting fate). I have heard nothing - and as I said at the time I wasn't given the TOR paperwork either.

Can I have some confidence this isn't going anywhere now...?!

Thanks!
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NewJudge
post Tue, 23 Feb 2021 - 10:40
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I don't think you mentioned the exact date you were stopped but they have six months to begin court proceedings (unless the offence was in Scotland where a "temporary" extension to twelve months is in place). So they have until the end of this month to do so and it should take no more than a week or so after the commencement of proceedings for you to hear. Have you checked your driving record with the DVLA to ensure you have not been convicted in your absence? It's unlikely as it would mean a number of items sent to you had not reached you. But it's worth a check.
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The Rookie
post Tue, 23 Feb 2021 - 10:52
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It was the BH weekend (29-31 August), as February is a 28 day month then proceedings would have to commence on the 28th Feb at the latest (unless it was in Scotland) and the OP should here within 2 weeks of that.


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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!

S172's
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Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
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