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james1979c
Hi everybody i'm looking for some help and advice with a court case which is coming up.


The circumstances - I was driving down the A68 about 20 miles south of Edinburgh towards Newcastle (about 250miles away from my home). I was driving through a village with a 30mph speed limit following a utility company van that was constantly speeding up and slowing down between 15-30mph. As i left the built up area the van was doing about 15mph and i thought he was looking for somewhere to stop, so i overtook him accelarating upto the 30mph speed limit, now with the national speed limit sign about 100metres in front of me. As i got past the national speed limit sign i accelarated up to 50mph and noticed a volvo car with flashing blue lights overtaking the van behind me. I pulled over in a small side road and he followed me in.

I stayed sat in my van and the policeman came to the window to speak with me, the first thing he said was "what do you think you're doing overtaking in a built up area it's not allowed". I pointed out that i thought the van i was following was stopping and was travelling slow and there weren't any road markings which forbid overtaking. He said "you're not allowed to overtake in a built up area". I said "I don't agree, i think you are if you don't exceed the speed limit and there aren't solid white lines". He then told me to come and sit in his car and to bring my mobile phone.

I didn't like where this was going. When i got in their car (there were 2 officers) we argued over the overtaking, and then without warning the officer said anyway you were using your mobile phone. This completely threw me as i knew that i hadn't and i was furious. I said a few things about what i thought of police officers like him and i was then cautioned and asked to reply to which i said "why are you lying". I thought at the time that they had completely fabricated the whole thing up so they could prosecute me for something, i told him to check my phone call register and messages but he refused, and told me he didn't have to and they probably had video evidence. I said you most certainly don't and asked to see it, which he also refused. This really made me mad and i was eventually let on my way.

When i got back in my van i did a "screen grab" on my mobile phone on the call register screen and on the messages screen which shows up to that point i hadn't used the phone that day. I then set back off and turned my stereo back on and restated my ipod which is linked to my stereo, at which point i realised that the 2 officers may not have been deliberately lying but may have seen me changing a music track on my ipod. If i hadn't been so enraged at the time and had thought rationally i would probably have remembered in the police car, but i was convinced he had made the whole thing up.

I have had a letter from the Courts asking me to plead guilty or not guilty and i returned it with "not guilty" I have now had another letter with a date of 31st May 2012 for an intermediate diet, where witnesses aren't present and a trial date of 28th June 2012.

I rang a solicitor and was quoted £3000 to defend me with absolute no guarentees or any confidence he could help me. I thought even if i prove my innocence i'm still £3000 worse off, as he told me costs for defence couldn't be claimed back in scottish courts.

The situation i'm in is this - I own a courier company and employ 4 people and i drive myself full time. I have 15points on my licence which were all from a 2 month period between june-august 2009 on my motorbike (which i have now sold). When i went to court last time they thought i only had 3 points (but infact had 9) as it was all very close to each other, they gave me another 6 thinking they had put me on 9 but really i had 15. No hardship plea was given as they didn't ban me or consider it. I hold my hands up to the motorbike speeding, i was daft and deserved it - they really clamped down on the country roads in my area and i kept getting caught out.

The fact is though i drive over 100,000 miles a year all over UK and Europe and in the last 10 years have picked up 1 speeding fine whilst driving, I have never been caught using a mobile phone as i never use it whilst driving - I am very against it as i see so much of it whilst i'm driving and see first hand how poor people drive when using them.

This really is a genuine error in what the police think they saw, and i would really appreciate some advice on defending myself, presenting my evidence at court, obtaining mobile phone records and what route to take with this.

Sorry for the long first post

Thanks

James
ict_guy
Hang on, let me just get my head around this - you have 15 points within the last 3 years and have not had a totting ban???? Perhaps you should phone the DVLA to see if you should be driving ohmy.gif
jobo
hmm if convicted i can see a 6 months ban comming your way though as you havent used a hardship argument there is nothing to stop you trying

do not argue with coppers at the roadside, if he had tried to do you for overtaking in a built up area youd have been laughing, or they make up other offences to do you for, as you found out

you can get cal logs with a great deal of difficulty and possibly a court order and if they have video evidence it will be shown in court, a lot depends on what their statements say to where they viewed you from
henrik777
Who is your mobile provider ?

Have you requested disclosure of the video ?
james1979c
Hi thanks for replying. They were in a hotel car park, and they say they saw me with a mobile phone in my left hand through my passenger window as I drove by, and I had my thumb on the screen!! My provider is 02 but I'm not sure who to request the information from. According to the paperwork that came through initially there is no video evidence.

James
AFCNEAL
QUOTE (james1979c @ Sat, 14 Apr 2012 - 18:19) *
Hi thanks for replying. They were in a hotel car park, and they say they saw me with a mobile phone in my left hand through my passenger window as I drove by, and I had my thumb on the screen!! My provider is 02 but I'm not sure who to request the information from. According to the paperwork that came through initially there is no video evidence.

James



Are there not statements from the two officers stating they saw you using a device?
mrh3369
A cynical court will be asking why they would lie, the word of two police officers will be very hard to defeat so I'm afraid your in for a big job.
henrik777
Ask o2 for you phone records from that day. They may say no so you might need to tell them you need them for a court case and maybe even threaten to leave them.

How do you now know there was no video evidence ?
james1979c
Yes there are the 2 police officers statements, my above post is a quote of their statements. I'm not trying to say the police were lying as I initially thought, I am simply saying they are mistaken in what they believe they saw.

There was a part on the witness statement that said no video evidence present.
sgtdixie
Slightly off topic but..... If a Police officer believes he saw a driver on his phone and it was something else then I would suggest that instead of telling the copper he is a w****r it would be better to show them the Ipod and explain what you were doing. Human nature dictates that argument is met with intransigence. The Police don't have to prove you were making or receiving a call as there are numerous phone functions which come under the legislation. By taking an attitude, the Police will say what they though they saw, they will no doubt comment that at the time you didn't claim you were holding something else. So the court will be invited to decide if both cops were wrong and why the defence you present at court wasn't mentioned at the time.

Ignore Jobo's comments re Police making up offences. You were clearly holding something which looked like a phone and made no attempt to clarify the issue so what were the Police expected to do.

What you have to do now is find a defence strategy which acknowledges you were doing something whilst persuading the court you were not holding a phone.
henrik777
QUOTE (james1979c @ Sat, 14 Apr 2012 - 18:47) *
Yes there are the 2 police officers statements, my above post is a quote of their statements. I'm not trying to say the police were lying as I initially thought, I am simply saying they are mistaken in what they believe they saw.

There was a part on the witness statement that said no video evidence present.



How did they describe the use of the phone ? Held to ear ? Talking ?
james1979c
Hi, no they said holding in my left hand - and they have also put thumb seen on screen!!! which is absolutely ridiculous, as they were in no position to see such detail from the distance they were away, the weather conditions and the quick view through the passenger window. I am also right handed.

James
henrik777
QUOTE (james1979c @ Sun, 15 Apr 2012 - 16:43) *
Hi, no they said holding in my left hand - and they have also put thumb seen on screen!!! which is absolutely ridiculous, as they were in no position to see such detail from the distance they were away, the weather conditions and the quick view through the passenger window. I am also right handed.

James



Well from what you say it sounds like they'll have a hard job convincing a JP with an open mind. Holding a mobile isn't an offence (well not this one anyway) and most people who hold it have their thumb on the front.

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

Amendment of the Road Vehicles (Construction and Use) Regulations 1986

2. The Road Vehicles (Construction and Use) Regulations 1986(1) are amended by inserting after regulation 109—


“Mobile telephones

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).
(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using—


(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4).
(3) No person shall supervise a holder of a provisional licence if the person supervising is using—


(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4),
at a time when the provisional licence holder is driving a motor vehicle on a road.


(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.


(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—


(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
(b)he is acting in response to a genuine emergency; and
©it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).
(6) For the purposes of this regulation—


(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;
(b)a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);
©“interactive communication function” includes the following:
(i)sending or receiving oral or written messages;
(ii)sending or receiving facsimile documents;
(iii)sending or receiving still or moving images; and
(iv)providing access to the internet;
(d)“two-way radio” means any wireless telegraphy apparatus which is designed or adapted—
(i)for the purpose of transmitting and receiving spoken messages; and
(ii)to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and
(e)“wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(2).”
sgtdixie
QUOTE (james1979c @ Sun, 15 Apr 2012 - 16:43) *
Hi, no they said holding in my left hand - and they have also put thumb seen on screen!!! which is absolutely ridiculous, as they were in no position to see such detail from the distance they were away, the weather conditions and the quick view through the passenger window. I am also right handed.

James

Didn't you say you were changing a track on your ipod. Whilst the officers have mistaken the ipod for your phone, something which you didn't mention when the allegation was put, it appears their description of what you saw is actually quite accurate. Whilst being found guilty is I would say less than 50% you have to consider what you tell the bench and what conclusions they might draw. You will have to admit holding the ipod and (presumably) using your thumb to change tracks whilst driving.

The Police do not have to prove you were speaking into the phone as typing out a text could be enough to prove use of the phone. So in essence your job is to persuade the bench what the Police saw was you using an ipod not a phone. A lack of call records does not prove your innocence. Your lack of explanation to the Police and somewhat confrontational language will count against you.

If you recall the caution you were given at the time says "it may harm your defence if you fail to mention now something which you later rely on at court". Coming up with the ipod defence at court not when stopped comes under this heading.

The Prosecution have a significant hurdle to get over (beyond reasonable doubt) but you have made your defence far more difficult.

james1979c
I did think about going back at the time as soon as I realized. However I didn't know the law and didn't want to incriminate myself for something that I didn't know was illegal or not. I thought that there was a possibility it was illegal to hold an iPod as I've heard stories of people been prosecuted for eating whilst driving. Looks like I made a big mistake.
jobo
QUOTE (james1979c @ Sun, 15 Apr 2012 - 22:14) *
I did think about going back at the time as soon as I realized. However I didn't know the law and didn't want to incriminate myself for something that I didn't know was illegal or not. I thought that there was a possibility it was illegal to hold an iPod as I've heard stories of people been prosecuted for eating whilst driving. Looks like I made a big mistake.

take no notice of sd,, you could have got stuck with a not in control charge if youd said you were on an ipod, its up to the copper to cut off your defenbce by questioning, there is nothing to stop you from asking them to prove it was a mobile phone in your hand as appossed to any other gadget, and anyway were you actualy cautioned ? they dont ussualy bother
sgtdixie
QUOTE (jobo @ Sun, 15 Apr 2012 - 22:31) *
QUOTE (james1979c @ Sun, 15 Apr 2012 - 22:14) *
I did think about going back at the time as soon as I realized. However I didn't know the law and didn't want to incriminate myself for something that I didn't know was illegal or not. I thought that there was a possibility it was illegal to hold an iPod as I've heard stories of people been prosecuted for eating whilst driving. Looks like I made a big mistake.

take no notice of sd,, you could have got stuck with a not in control charge if youd said you were on an ipod, its up to the copper to cut off your defenbce by questioning, there is nothing to stop you from asking them to prove it was a mobile phone in your hand as appossed to any other gadget, and anyway were you actualy cautioned ? they dont ussualy bother


I'm afraid Jobo lacks experience of this sort of thing and will always tend to tell OP's what they want to hear in such cases. The officers will, I'm sure, say you were cautioned as that is what is normally done. They will say they saw you operating your phone, you will say it was an ipod. The courts will be faced with 2 stories. They may believe either side but factors which inform their decisions will be
1) why would they lie, (after all 2 officers are unlikely to both make the same mistake
2) why didn't you mention the ipod.

It is true that they could have reported you for not in proper control but as you appear to have denied holding anything they have dealt with the offence they believed they witnessed.

Where it is your word against 2 officers credibility is essential to persuade the bench your version is the correct one. Your conduct at the scene has not helped you irrespective of what Jobo thinks.
jobo
are you suggesting the police would lie about cautioning him

the caution is, if you do not mention when questioned etc, if they dont question you, you dont have to mention it,, do you, ? at the moment for reasons of your own, your portraying the ops situation as impossible, rather than just difficult
sgtdixie
QUOTE (jobo @ Sun, 15 Apr 2012 - 22:58) *
are you suggesting the police would lie about cautioning him

the caution is, if you do not mention when questioned etc, if they dont question you, you dont have to mention it,, do you, ? at the moment for reasons of your own, your portraying the ops situation as impossible, rather than just difficult


Jobo

There are 2 versions of the caution. Yours is used when interviewing, the 'now' caution is used if you just report (have a read of PACE). I have said (if you check my post) he has a better than 50% chance of a NG but am warning him of a potentially dangerous line of questioning. I feel if he goes to court believing all he has to do is say it was an ipod he will fail. preparation is essential.
james1979c
I never denied holding anything at the scene as that line of conversation never came up. The officer kept saying you were on your phone, to which I adamantly denied. But it is true I didn't mention the iPod to them.

I seem to remember him saying something along the lines of "you will be reported for the offense of using a mobile phone" and then him asking me if there was anything I wanted to say to which I replied "why are you lying". I don't remember the "what you may later rely on in court" bit but may be mistaken.

Would it be a daft thing to say in court that I didn't know wether I would be incriminating myself for another offense and so didn't mention the iPod?

I really can not afford to lose my licence, is a solicitor the only way I should be going with this. The thing that grates me so much is the fact of having to pay £3000+ to try to prove my innocence and been totally out of pocket.
mike848
QUOTE (james1979c @ Sat, 14 Apr 2012 - 12:21) *
the officer said anyway you were using your mobile phone. This completely threw me as i knew that i hadn't and i was furious.

First, this not overtaking in "built-up areas" is preposterous. You shouldn't overtake either if to do so is unsafe or if the road markings/signage prohibit it. Whether the area is built-up or not is irrelevant except as covered under safety.

Reading between the lines, and making the usual PePiPoo assumptions, the officer was annoyed by your attitude and/or your correcting him about the overtaking, so looked for something else, and the cake of the day was "mobile phone use".

Now this is where I don't fully get things. (I can see Jobo and sgtdixie are in on this too, but this is solely my take)

I've once - in the last year, so I recall it perfectly - been stopped in London by a cop car late at evening as I performed a manouevre. Young man said, saw you'd got your mobile in your hand, you were making a call, you know you are not permitted... I cut him off politely (the longer you let them get fixed into a position, the more they will invent things to stick in it) and handed him my cellphone, inviting him to check me or my car for any other cellphone (there wasn't one), and to check when the last call was made or received on it. He was very adept, checked the phone's log, then smile and shake of hands, "drive safely / have a good evening" etc. and off they drove - yes, they remembered to give my phone back.

So why didn't they suggest this? Perhaps, they didn't because the phone use was an invention by them? At the end of the day, potentially there's an offence even if a call was not connected but the device was being manipulated by the driver of a moving car, so they know they needn't prove it.

But why didn't you?

As to device "qualification" for not in (adequate) control, if an apple will (click here for details!), an Apple ipod will too.
CuriousOrange
QUOTE (henrik777 @ Sun, 15 Apr 2012 - 17:48) *
Holding a mobile isn't an offence (well not this one anyway) and most people who hold it have their thumb on the front.
The offence is using a hand-held. 'Using' is not defined in the legislation so that has to be debated in court; the two types of hand-held device are fairly well defined.

I've never thought that courts would be overly convinced by the 'I was just holding it for fun' line of argument. 'Most people who hold it' are doing so because they are, have been, or are intending to, use it.


I'm guessing that iPod isn't shorthand here for the iPod touch.

Mayhem007
Some things are in your favour. You did not admit to the alleged offence and in fact you called the officer a liar. This should come up in court, but know doubt the officer will state there was no response when cautioned. The officer should have took control of the situation and asked if there was any specific reason for using the phone, this may have then reminded you about the iPOD. You must obviously in the cold light of day in court retract your statement of referring to the officers as liars, as you now know that they were mistaken.

If they mistook your iPOD for a mobile phone then they surely did not have a clear view and would suspect that there will be some contradictions between the officer's statements.

With 15 points going back to 2009, it appears that your best option would be to maintain your not guilty plea. Hardship mitigation is still available if found guilty.

£3000 for a solicitor might in the long run work out cheaper for you, plus the fact in a few months time your points will come off your license and you'll have a clean sheet. If found guilty and given a TT99 your looking at another 5 years of hiked up insurance premiums.

dawmdt
Do the officer statements mention this whole "not overtaking in a built up area" thing? If so, that's a pretty reasonable explanation for being baffled and confused and not considering the iPod as the possible area of error.
james1979c
Yes they mention it
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