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dunny78
Hi everyone. Did you ever get anywhere with this? I have found this thread helpful so many thanks.

I am in a very very similar position - this Monday I was pulled over and given a ticket with "not in proper control of vehicle" written on it, when I actually had my phone in my hand making a call through my bluetooth car kit! The phone was ringing through the speakers as I wound my window down to speak to the police officer! By coincidence my renewal is up soon and I have done some comparative quotes - CU80 adds £100 to my policy and MS60 adds £500. Given that this will stay on my record for 5 years for insurance purposes, this is a very costly difference for what is in essence the exact same offence.

I have this morning spoken to Citizens Advice who were clueless and put me in touch with Community Legal Advice who were also little help. Consequently I went to the police station this afternoon and queried it, was told that if the phone had been held to my ear it would have been a CU80 offence, but because it was in my hand at chest height it is an MS60 offence, hence the offence description is correct. I didn't given them my licence as as soon as I do they will endorse it with the MS60, but the window of opportunity for me to decide what I am doing is closing as the 7 days for me to submit my licence and pay the fine will be up next Monday.

I have the date and time stamp on my mobile of the time I made the call to substantiate myself, although the fixed penalty notice only has a date on and no time. For the sake of an hour out of my day I am prepared to go to court if there is a reasonable chance of getting this overturned, especially if the worst that will happen is the MS60 gets upheld and I have to pay £50 or so costs.

As someone who is just setting up a business for the first time this is really bad news financially, to be tarred with the ambiguity of the MS60 seems very unfair.

Any help or advice would be much appreciated.

mrh3369
Probably best to start your own thread as there is a strict one case one thread policy.
Aretnap
First of all you should really start your own thread for a new case: hopefully a mod will split this off.

QUOTE (dunny78 @ Thu, 22 Mar 2012 - 15:56) *
Consequently I went to the police station this afternoon and queried it, was told that if the phone had been held to my ear it would have been a CU80 offence, but because it was in my hand at chest height it is an MS60 offence, hence the offence description is correct.

Doesn't make a lot of sense to me. Nothing in the mobile phone regulations suggests anything about the phone having to be held to your ear. Maybe post-Jimmy Carr they're worried that you'll claim that you were using it as a dictaphone to record a joke, so they're using the different charge. But you were, by your own admission, using it as a hand-held mobile phone.

If they won't give you a fixed penalty for mobile phone use then you have the option of declining the fixed penalty and letting them summons you to court. They might eventually summons you for mobile phone use, in which case you could plead guilty by post, get 3 points and a small-ish fine (though more than £60). If they summons you for not in proper control then you might have half a chance of defending it - I believe the specific offence of using a mobile phone was introduced because it was not always possible to get a conviction for not in proper control. Or, a word with the prosecutor before the hearing could result in him being willing to substitute a mobile phone offence for not in proper control, in return for an agreement to plead guilty to it.

In court the penalty for either offence would be a fine of around half your weekly post-tax income, reduced by a third if you pleaded guilty. Plus £15 victim surcharge and around £85 costs for a guilty plea - higher if you were convicted after a not guilty plea and a full trial.
Logician
I think Aretnap has nailed it, the way to go is it to let it go to court and speak to the prosecutor beforehand, offering to plead guilty to mobile phone use if not in proper control is dropped.
20372
I have a vague recollection of someone who was found not guilty of using his mobile phone whilst driving because, although he was proven to have been holding it to his ear whilst driving along, the police hadn't seen him speaking when he passed them, so it was held that he hadn't been proven to have been using it.

I sometimes wonder if the driving whilst not in proper control offence is used as an alternative more often than it otherwise might have been because of the potentially infinite arguments along similar lines?
sgtdixie
Guidance to Police is if you can prove the phone was being used as a phone you use mobile phone legislation, if not use not in proper control; however as SP says there may be several offences covered by the same circumstances and given the reluctance of courts to convict for mobile phone offences many cops go for what is arguably the easier offence to get home.

I can understand the OP being annoyed at the insurance implications, I would be as well.
jobo
just about typical the police are losing moby cases and so have reacted by trying to throw an a over aching charge at it

as above holding a moby is far from an automatic conviction for not being in proper control, and would be well worth contesting in MHO, it would i believe be possible for the cps or even the court to ammend the charge as you can reverse the ussual, i wasnt using a moby argument in your favour
dunny78
Thanks all for your much valued input.

I'm in two minds whether to fight this or whether, despite the seeming injustice, to accept that I won't be the first or last this happens to and just suck up the financial implications at a time when I can do without the time spent or hassle.

The alternative appears to be to not accept the FPN and let them summons to me court and then as suggested hope that I'm summoned for mobile phone use in which case I accept and pay up before the court date, and failing that either stand up in court and defend the charge or speak to the prosecutor beforehand to say I will admit to the charge of mobile use if the not in proper control charge is dropped. Downside of this appears that if it does go to court then by the looks of what Aretnap says the overall fine is not insignificant - and potentially on top of the big hike in insurance if I don't get the desired outcome.

Is the court appearance likely to be time consuming and a lot of hassle? And are the fines of half a weeks net income less a third for quick payment plus £100 fees definitely going to be incurred if either charge is pleaded guilty to? It's just I'm sure I read somewhere the court costs would be £40, and the receptionist at the police station said she thought the costs used to be around £30?

Thanks again for yolur help as a new poster, any further input is gratefully received.

Oh by the way I forgot to mention that I didn't have my seatbelt on at the time (had only just got in the car, no excuse I know) which they said they would let me off with as a "favour" (which I didn't really understand why they would do), if that makes any difference.

Wish they'd have charged me with that instead!
jobo
yes something like that, but if you contested the NIPC and lost then the costs could be a good deal more than that, you could be cheeky and ask them for the fpn fine of 60 quid, as you would have accepyted it if they had gone for the right charge, i cant see any reason why the cps wont accept your offer or even the court, its no skin of their nose

its your shout, you either risk the money up front or your doomed to higher insurance
Logician
Costs for a G plea are usually £85 but sometimes they just ask for £65 for traffic matters, surcharge is £15.
Aretnap
The prosecutor just wants a conviction, and given a choice between a contested not in proper control charge and a guilty plea to using a mobile I can't see any reason for him not to prefer the latter - the penalties (other than insurance) are the same for either offence, so it's not as if he'd be letting you get away with it. Biggest difficulty I can foresee is that it could take more than 6 months for it to come to court, and after 6 months it would technically be unlawful to introduce a new charge. Some courts and prosecutors are willing to do it anyway in the right circumstances if everyone agrees, but not all are.

If you do get the right result then, after you've told the magistrates how sorry you are and that you'll never do it again, you could explain that you would have happily accepted a fixed penalty for mobile phone use, and asked the police if you could be given one of those instead, but were concerned about the insurance implications of an MS60 code. If they're sympathetic they may well fine you at the level of the fixed penalty (£60) and/or reduce the costs order, but there's no guarantee.

The actual court appearance should only take a few minutes, but you should expect to take a day off work as they won't give you an exact time in advance; it will depend on what other cases they have on the day and how long they take. Plus you'll want to get there early so you have chance to speak to the prosecutor beforehand.

So yes, there's a risk that going to court will mean more expense and hassle, but there is the hope of saving yourself a lot of money on insurance over the next 5 years. Personally I would take the risk in your situation, but ultimately it's up to you.
CuriousOrange
QUOTE (Aretnap @ Fri, 23 Mar 2012 - 08:00) *
Biggest difficulty I can foresee is that it could take more than 6 months for it to come to court, and after 6 months it would technically be unlawful to introduce a new charge.


In R V Scunthorpe Justices... (which was on bailii but seems to have vanished now) it was decided that a different offence could be alleged even after the six months, provided that "the new offence should arise out of the same (or substantially the same) facts as gave rise to the original offence", and that it was in the interests of justice. Certainly on that first point this should qualify.


dunny78
Thanks again.

I think I'm going to contest it then - worst case I lose a bit of time and get a £100 fine, plus if the case doesn't come to court for a few months it won't affect my insurance renewal next month...

Do I need to see / take a lawyer with me or is it simply a case of representing yourself and putting your point across in court?
AFCNEAL
QUOTE (dunny78 @ Fri, 23 Mar 2012 - 11:09) *
plus if the case doesn't come to court for a few months it won't affect my insurance renewal next month...


Tread carefully with this assumption? Factually you do have a conviction which you'd be wise to reveal? Even if you aqre contesting the material substance still means you have a conviction and in any event, most insurers ask about pending cases anyway?
Aretnap
QUOTE (AFCNEAL @ Fri, 23 Mar 2012 - 13:52) *
Factually you do have a conviction which you'd be wise to reveal?

He doesn't have a conviction if he hasn't been, erm, convicted. He does have a dilemma if the insurer asks about pending convictions though, as most will.
captain swoop
If he gets a conviction he will have to tell the insurer though, can they then ask for more cash on his insurance before the renewal?
Logician
If he is asked to disclose anything pending, he can quite rightly say that there is a court case pending over his use of his mobile.
BB Law
dunny78

If you do decide to defend this on the basis that you are being prosecuted for the wrong offence, then the principle in the following case may assist your argument and may encourage the CPS to accept a plea to Using a Mobile Phone (although I doubt they would need much encouragement!)

If it was me, assuming the offence is changed to Using Mobile Phone, then I'd be asking for £45 fine, £15 victim surcharge, £0 costs and 3 points. I might also consider asking for my costs relating to defending the original charge to be refunded.

Hughes v Director for Public Prosecutions [2012] EWHC 606 (Admin)

This is an appeal against the decision of the District Judge for the Luton and South Bedfordshire Local Justice Area. The judge asks whether he was correct in finding the appellant guilty of an offence contrary so section 4 of the Public Order Act 1986 for using threatening and abusive behaviour with intent to cause his victim to believe that immediate unlawful violence would be used against him.

The judge concluded that the appellant did intend to cause a Mr Peck to believe that unlawful violence would be used against him.

He approached Mr Peck from his right-hand side and, it is important to note, slightly to his rear. He struck him a violent blow with his fist to the side of the head. It appears that Mr Peck was immediately knocked unconscious because, as found by the District Judge, he fell to the ground and did not move. The District Judge specifically found that the appellant had approached Mr Peck and "threw the punch in such a way that it would land before Mr Peck perceived the blow, or so soon after he perceived the threat as to prevent him from reacting to defend himself".

The judge further found that there was no evidence that Mr Peck was aware of the blow before it struck. He further found that the appellant intended to punch Mr Peck to the head, and intended to strike the blow before Mr Peck could defend himself. He then continued:
"If Mr Peck saw the blow before it landed, the appellant intended that Mr Peck believe that unlawful violence would be used against him, as indeed it was."

He concluded that he was sure that the appellant had both the intention to punch Mr Peck to the head and the intention to cause him to believe that unlawful violence would be used against him. He repeated that he was satisfied that the appellant had those two continuing concurrent intentions, as he put it, which were not mutually exclusive.

Held: “The question for this court is as to whether there was evidence on the basis of which the judge was entitled to infer that the appellant intended to cause Mr Peck to believe that unlawful violence would be used against him. We should make clear that that was the basis upon which the appellant was charged under section 4(1) of the Public Order Act 1986, and there was no case made against him on the basis not of his intention, but rather that it was likely that such unlawful violence would have been provoked, that it is a separate and distinct basis which was not pursued in this case.

It is important to acknowledge that there is no requirement on the prosecution to prove that the victim did in fact believe that he would be visited with unlawful violence (see Swanston v DPP [1997] 161 JP 203 WL, following early authority). But, in this case, the question for this court is whether there was any evidence at all that the appellant intended his victim to believe anything, let alone that he would suffer unlawful violence. This was, as the judge specifically found, a sneaky and unprovoked attack: the appellant approached the victim from behind. As soon as the appellant got close enough, he delivered the blow in such a way as to avoid any advance warning.

In my view, there was no evidence whatever from which it could be inferred that the appellant intended to cause Mr Peck to believe that unlawful violence would be used against him. Mr Leonard suggests that there was a possibility that the victim might have noticed what was about to happen to him before the blow was delivered, in which case the actions of the appellant were such that it could be inferred that he might have intended to cause him to believe that he was about to be hit. That is, in my view, a wholly unacceptable and highly strained basis upon which to view the facts. The reality is that the intention of this appellant was to hit the victim before he knew what was happening to him.”

He continued:

“Why it was that the appellant was not charged with an assault, or even a more serious offence given the effect of striking this man unconscious with one blow, has never become apparent and could not be explained to us by counsel for the prosecution. Where the prosecution have failed to charge the obvious offence, it is quite wrong to seek to strain a view of the facts so as by some unjustifiable Procrustean method to drag it within the embrace of an offence miles away from that simple charge of assault, which is what this appellant ought to have faced.

Counsel does make the more realistic submission that there will often be cases of an assault where it can be inferred that the intention of the perpetrator of that assault will be to cause the victim to apprehend a second occasion of violence - a second blow. But there was absolutely no evidence of that in this case; certainly no evidence of that intention to be inferred from the sudden striking of one blow.

The reality of this case was that the prosecution charged the wrong offence, and that the District Judge understandably, but in my view mistakenly, sought to see that at least the perpetrator of this wholly uncalled for violence did suffer at least a conviction for some sort of offence. It requires no words of mine to underline that that is not an acceptable approach. If the prosecution charge the wrong offence, they had no business in seeking to pursue so unrealistic a course. In my view, the appellant ought not to have been convicted of an offence under section 4(1) on the basis of intending the victim to believe that unlawful violence would be used against him, even if other aspects of that offence under section 4 might have been more appropriate.

There was no evidence on the basis of which the judge could conclude in the way he did, and I would allow the appeal.”
Mr. Justice Irwin added: “The implication of the argument advanced on behalf of the respondent was that an offence under section 4(1) of the Public Order Act 1986 could be charged in almost every assault case which arises. I echo the words of my Lord, Moses LJ: it is highly desirable that offences should be properly charged, not charged on a strained or artificial basis. This was, on any sensible view, an assault and it should have been prosecuted as such.

Prosecutors should not seek to confuse what should be readily understandable criminal proceedings by attaching the wrong label and then attempting to see that the label sticks.”
Conviction quashed.


Hope this helps

BB Law
dunny78
This information has been a massive help and my gut feeling is to have my day in court, with the worst case scenario being a slightly higher fine.

HOWEVER I do have one last question with regards to insurance - if I reject the FPN and request a court hearing that takes a few months to come through, does this need declaring to my insurer on renewal next month? For example, I have run quotes through on Go Compare and the question is asked "Any motoring convictions (including fixed penalty endorsements or anything pending) in the last 5 years?" If I select the pending conviction code (Z005 Pending conviction - awaiting DVLA confirmation of conviction code) I only get quotes from two providers, the cheapest being £2000 which is £400 more than the quote with an MS60 on!

This is a potential deal breaker as if I have to declare this pending case it hardly makes it worth bothering contesting the MS60... I have to take my licence in and decide what I am doing by the end of today so any responses would be much appreciated!

Thanks.
Logician
It depends on the question your insurers ask. Comparison sites like Go Compare obviously ask all the questions any insurers want, but that sounds like it would cover anything at all so the premium is probably based on the worst case scenario of any offence. Why not see what your insurers asked last year if you were with them or contact them directly? Also ask when the premium goes down if you are acquited.
Aretnap
As your situation is somewhat complex I wouldn't be using a comparison site, I'd be getting on the phone to insurance companies and speaking to a real person. If asked about pending convictions, Logician's suggestion of telling them that you have a court case pending relating to use of a mobile phone while driving and seeing what they make of that may be the way to go.

IIRC once you surrender your licence you still have a statutory 21 days to pay or request a court hearing which should give you a bit more breathing space - though wait for someone to confirm that my memory is correct.
Gan
I agree

No perfect answer to your question but this looks like the least worst option.
dunny78
Just to update and to help anyone who has a similar issue, when I went to present my licence at the station there was someone different on reception, so I explained my situation again and said that I felt that I was going to have to contest the actual offence due to the insurance cost involved and the fact that I WAS using my mobile at the time - and have the time and date stamp of the call on my phone. He understood my situation and explained that FPN's were there to save the time of going to court, and therefore if I was willing to admit guilt of using the mobile phone it would make sense to avoid the court hearing. He went away to call the Central Ticket Office to ask their advice, and came back advising me to write a letter to them explaining the situation. He took a copy of my licence but I did not leave it with him.

I wrote the aforementioned letter with all the details on, stating my remorse for the actual offence comitted and that I would be happy to admit guilt to this and submit my licence and payment immediately should the offence be changed to using a mobile phone whilst driving.

I today received a letter saying that "after investigations" the correct offence WAS using a mobile phone whilst driving, and that my licence would be endorsed accordingly - ie. with CU80. I've paid the £60 and sent my licence off this afternoon - happy days!

Thanks to all concerned for your help.
Logician
An interesting outcome, thanks very much for coming back and telling us about it, that may assist others in the future.
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