Challenging Hand held mobile offence...not guilty. **Acquitted**

[Tony P]

The last 3 posts are refreshing in that they return to the nub of the matter -

 

- using a hand held phone is a specific offence, defined by legislation. Most other things mentioned earlier are not but are matters of opinion and interpretation of circumstances when it comes to prosecution and Magistrates decisions.

 

Not wishing to get the thread bogged down again, but I am not so sure about fletch's comment that a charge being changed. That surely requires their own specific Notice of Intended Prosecution for which there probably would be fixed time limits.

[Aretnap]

Using a mobile phone and not in proper control are both construction and use offences so neither requires a notice of intended prosecution. In summary only matters (eg most motoring offences) a new charge old not normally be introduced more than six months after the offence, however one charge can be substituted for another outside the six months if they arise from of substantially the same facts (R v S****horpe Justices). This would allow swapping a mobile phone charge for a proper control charge - they would both arise from the (alleged) fact that the defendant was touching his phone.

[Tony P]

Aretnap,

I bow to better knowledge.

Thanks.

 

Back to helping the OP ...

[CAAD]

I think most of our comments are irrelevant. The driver is being charged with having the phone in his hand as I understand it. If he can get the Police to concede that they were mistaken, whether

he has to push a button to open or close the conversation doesn't matter. He is not guilty if he was using hands free equipment and using it in the correct manner when both seen and stopped by the Police.

They cannot change the charge to another one if they concede they were, or might have been mistaken.

 

Bear in mind that though it would appear to be a 50-50 chance, the OP has got certain things going for him.

1] it would have been easier and perhaps cheaper to swallow and pay the instant fine.The fact he hasn't paid indicates his innocence

2] it's not as if he has to worry about losing his licence-he has no points on it.

3] the comments by the Policeman were ill advised [ if I go to Court ,I get a day off but you lose a days pay]. Did the PC admit that on his statement?

 

Hi thanks for that. Things did certainly get sidetracked on here. My husbands mobile was in the device holder on the dashboard and he never touched it. On the officers statement he's put it was on my husbands lap! Which was false!

 

We have sent the form back now to say he is not guilty and going to see what happens. We did have a big think about it and thought should we just give in and plea guilty...pay the fine now...just give up after both the PC and PCSO statements have false accusations,but then we thought about it ..it's wrong. Not being bullied into paying this. He was doing nothing wrong. The PC did not put on his statement regarding "you might answer pay it now as I get a day off work blah"

[KMHanlon]

On this Off Topic Rant; I agree and thats where Driving Without Due Care And Attention comes from i.e. not being aware of your surroundings, driving falling below the reasonale standard etc.

[CAAD]

Update...We have now been given a date for the court hearing. So I shall update this thread when we know the outcome.

[lookinforinfo]

Good luck.

I hope that the Policeman who stopped you is man enough to admit that he was [or could be] wrong that the phone was in your lap. The PCSO would have difficulty anyway under scrutiny

to say definitely that they saw you on the phone, given that phones are so small and the speed with which you went past. [i am not claiming you were speeding but it is quite difficult to see through

a car windscreen for instance, and so there would only be a limited time to view from the side-possibly less than a second].

[CAAD]

Hi everyone,

 

Well we went to the magistrate court today and....... We won.

 

We went along today feeling quite confident but a little apprehensive as my husband was representing himself. Both the PC and PCSO had turned up. We was waiting for 3 hours before we actually went into the court room,,,,sat in a waiting room with the coppers!

 

The judge allowed me to sit with my husband to assist him when he has to put questions to the PC and PCSO.

 

They had a solicitor.

 

First up was the PCSO who said she was practically 3 lengths of the room we was in,to witness my husband on the phone. When she was acting as a spotter. The judge said..so about 100feet away..in amazement and she said yes! Now that is far!!!! Then she said how she was stood on the left side of the van mh was in. And seen him clearly on the phone.

 

My husband said yes he was on the phone. He was talking via the Bluetooth system in the car. One hand on the steering wheel and one arm resting on the window with his hand at the side of his face as he was driving at such a slow pace. The phone was in a cradle.

 

So onto the PC.

 

He was quite flustered on the off. He just didn't seem prepared for the questions his own solicitor was going to ask him. There was a few discrepancies the judge picked up on too. When my husband was told to pull over last aug he tried to demonstrate how the Bluetooth system worked. Soon as the engine is on,the phone straight away pairs up to the in car system. The PC wasn't interested and demanded for him to pay the fine and take the points. He wasn't ready to listen to my husband. He hadn't seen my husband with the device in his hand at all but did lie and say the phone was on his lap. At this point the Judge cut in and said how the phone could be anywhere in a car..on a lap,on the floor,on a seat,in a cradle...anywhere BUT in a hand whilst driving. So for the PC to say it was in his lap didn't make any difference to the judge.

 

There's was other things the PC failed to answer to too. At this point he was sweating. When it was our turn to ask questions my husband asked 'did you see me driving with the phone in my hand' 'did you let me demonstrate how the Bluetooth system worked?' Then 'what did you say to me about paying the fine' he said he didnt remember word for word so my husband said 'I remember we'll word for word what you said that day as I wrote it down straight away,you said You might a swell pay the fine and take the points,as I get paid no matter what for attending court and you probably wont and will lose a days wage so save yourself all the earache and pay it' At this point the PC looked incredibly embarrassed. I'm so glad he said this as it was in my eyes...a bullying tactic.

 

Now it was my husbands turn. He just told the truth. Yes he was on the phone,via the Bluetooth. He did everything the PC said except pay the fine etc. Their solicitor asked 2questions and tried her best to get him to panic or fluster but he had no reason too as he did nothing against the law. She said the PCSO DID see you on the phone didnt she??? My husband said Yes she did see me talking whilst on the phone...via the Bluetooth.

 

There wasnt anything more for her to say.

 

At this point the Judge came to the end and stated.. '''how my husband had never denied he was on the phone. But he was doing it via his Bluetooth. He was resting his arm to his face as he was driving at crawling pace due to the very slow traffic. He said how the PCSO might have in her own defence,truly thought she'd seen his phone at his ear but from such a distance and as the van had no window at the back it was very unlikely. He said how the PC stated the phone was on his lap..but that makes no difference, it wasn't in his hand. He said how my husband could've paid the fine and took the points but he didn't and attended court today,represented himself to prove he wasn't guilty of this offence. Therefore he acquitted the case in my husbands favour!

 

So so glad we stuck to our guns and carried on. We had had so many letters offering us 'one last chance' to pay the fine and take the points. And at times..usually after I'd sent them the no reply...I would panic. Waiting in court today on our own whilst the police had their own solicitor with them frightened me a little. And I would have little doubts that were going to lose. But thankfully we did well and the judge listened to our side.

 

Sorry if I bored you with every little detail but just wanted to share with you how the day went.

 

Never be bullied into paying a fine and taking points if you know fair well you have done absolutely nothing wrong.

 

Thanks

[renegadeimp]

Thats amazing news for you and your husband. Congratulations. I hope the police force comes down on this lying PC hard.

[ploddertom]

Good result for you. Will change your thread title to suit.

[CAAD]

Thankyou. We wanted to do a celebration cheer when he told us the outcome,but knew we couldnt in the court. so we had a little smile to each other. when we left the room,the police were nowhere to be seen. They had vanished...very quickly.

 

During the time we was waiting in the court,before the case began. Dave,my husband,walked past the PC to go to the toilet. The PC said 'taking a long time waiting here isnt it' Dave said yes it is. The PC said 'go and put £60 under the door(of the room where the case was being dealt at) and we can then all go home!' Cheek!

 

Anyway,we are very proud of ourselves.

 

Thanks for updating my title.

[Desperate Daniella]

I've just read your entire thread and I'm so glad your husband was acquitted.

 

Earlier sgtbush refers to drivers reaching down into the foot well to retrieve a bottle of water. Can I please ask everyone reading this never to do that if it means taking your eyes off the road. Someone I know was run over, paralysed for life, and brain damaged by a girl who ran into him when she was trying to retrieve her cigarette from the foot well. She went to prison for a short while. He will never recover.

[lookinforinfo]

Caad, I am delighted that your husband got the result he deserved. When one is 100% in the right, then the decision the Judge has to make is rarely 50/50. The Judge sees these sort of cases all day and is usually

pretty tuned in. Credit to your husband too for remaining calm in Court as it can be a bit over whelming the first time and that would have been picked up by the Judge since had he not been telling the truth

he would not have been so relaxed.

[BRIGADIER2JCS]

It is certainly a significant victory, to use a PCSO as a ''spotter'' from such a considerable distance shows a serious lack of care by the police force concerned.

[Desperate Daniella]

I think they are probably more concerned with keeping the numbers up, and hoping no-one will dare to fight back.

[me_n_ze]

just a quick question...... where was the police from? essex?

[CAAD]

just a quick question...... where was the police from? essex?

Sorry not been on here for ages. No Manchester.

[renegadeimp]

Good job you weren't in north wales. They'd have taken you car, clothes and your first born. Theyre bloody ruthless over here.

[king12345]

Brilliant!