Using phone whilst driving - even though I wasn't!

[Man in the middle]

Is this by any chance the same random check that this chap encountered:

 

http://forums.National Consumer Service.com/index.php?showtopic=141898

 

If so, you can follow the same advice.

[Man in the middle]

This is all fine and dandy. But bear in mind the police have to prove your guilt, you do not have to prove your innocence. I don't really know what you intend to do with your statement.

 

Everything you mention in it will only be considered if the matter goes to court. The likelihood is that you will be offered either a course or a fixed penalty.

 

To accept either of those you have to accept the allegation as it stands. The alternative is to decline those offers and plead Not Guilty in court. (There is no point in going to court and pleading guilty - it will simply cost you more cash).

 

You will have to make up your mind whether you are going to challenge this by the time the course or fixed penalty offers expire (which is 28 days after you receive it).

 

If you are going to challenge the allegation you will receive the evidence the police intend to rely on to convict you. if you are charged with a mobile phone offence the police will have to prove what purpose the phone was used for (as per the case of "Barreto").

 

You will have to make up you mind what to do.   

 

 

Edited January 7, 2022 by dx100uk
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[Man in the middle]

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...I would be sent notification of prosecution, which has just come through - six points and £200 fine or else a £90 3-hour driving course. 

 

That isn't a notification of prosecution. It is the details of the alternatives being offered to avoid prosecution. If you decline either of those, prosecution (i.e. court action) will follow. The choice you must make is whether to accept one of those offers or have the matter dealt with in court.

[Man in the middle]

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I'm not sure that you have yet decided whether to plead guilty. If you really didn't use the phone in the way that you say then it will be a terrible shame to plead guilty. However if this is what you want to do then let us know and I will suggest some amendments to the statement that you should present.

 

If you are going to plead guilty there is absolutely no point in allowing the matter to go to court. It will see a fine of a third of a week’s net income, a Victim Surcharge of 10% of the fine (minimum £34), £85 costs and six points.

 

If you intend to accept the allegation, by far and away the option with the least damage is the course you have been offered. No conviction, no endorsement, no points.

 

If you don’t fancy that then the fixed penalty of £200 and six points is the best alternative offer you will get. If you accept either of these options you need offer no explanation or mitigation as no consideration is made for the circumstances of the individual offence.

 

The out of court disposals are fixed regardless of what actually happened or what explanation there.may be.

 

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If you plead not guilty then I think you would be entitled to ask the court to require the officer who actually saw you with the telephone in your hand to give evidence.

 

If you plead Not Guilty you will be given a date for a court hearing (which may be up to six months from the date of the offence).

 

Before that hearing you will be served with the “Initial Details of the Prosecution Case” (IDPC). This is to enable you to formally enter your plea and must consist of the evidence the police intend to rely on to convict you.

 

I imagine it will be no more than the officer’s statement. If you disagree with his evidence and want to challenge it, you are entitled to have him attend court to be cross-examined. Unless he attends his evidence cannot be considered by the court.
 

Edited January 7, 2022 by dx100uk
added A few blank lines only..dx

[Man in the middle]

Just for clarification, the course you have been offered is different to a speed awareness course. It will not affect your eligibility for a speeding course should you commit a low-level (i.e. up to Limit + 10% + 9mph) speeding offence.

 

The difficulty you have here is twofold:

 

Firstly you do not know which offence they may charge you with. It may be "using a mobile phone" in which case the police have to prove not only that you were using your phone whilst driving but also what the phone was being used for (the care of Barreto comes in here). From what you say they may have difficulty doing either of these since you were not using your phone at all. But they may charge you with "Failing to be in proper control". The requirements to prove that offence are far less onerous. The problem comes in because by the time you face one or other of these charges the opportunity for a course or fixed penalty will be lost.

 

Secondly, whatever charge you might face you will not see the evidence the police intend to use until court action is begun. Once again, your out of court options will be lost by then.

 

Nobody can tell how a trial is likely to turn out. None of us were there and so do not know what the police might or might not have seen. However, the police must prove their case beyond reasonable doubt. Courts do not routinely believe police evidence unconditionally. However, they always have in mind that, whilst the police may sometimes be mistaken, they generally have no reason to commit a serious offence by lying either when making a statement or providing live evidence in court. They have plenty of opportunities to catch genuinely errant motorists without the need to perjure themselves. 

 

I appreciate this is a difficult decision for you. If you are convicted following a trial the prosecution will probably ask for costs of around £620. The court does have the discretion to reduce these according to your means, but it will nonetheless cost you considerably more than the offers you have been made. Let me know if I can help further.

[Man in the middle]

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Yes I think it is clear and I don't understand why this discussion is starting to raise doubts about this.

 

The reason the discussion is raising doubts about this is because there are doubts about this. It is not clear (what offence he might face if the matter goes to court). He has not been prosecuted and will not be prosecuted if he accepts one of the out-of-court disposals on offer.

 

If he declines or ignores those offers the matter will go before a police or CPS  lawyer (just who depends on how they operate in the area concerned) for review. Everything that went before (in terms of out-of-court offers etc.) plays no part in that review.

 

The decision for the police/CPS will be based on the evidence available. If it is believed that there is evidence for the specific (mobile phone) offence that will almost certainly be charged. If there isn’t and the evidence supports the broader charge, that may be raised instead. Or they may decide to take no action.

 

I happen to believe, from what has been said, that there is insufficient evidence to support the mobile phone charge. This is principally because the OP says he was not using the phone at all. But even if he was, the police have to prove that it was being used for “interactive communication.” This is a result of the case of “Ramsey Barreto vs DPP” which is available online to look up. I’ve no idea, from what he has told us, what the prospect of a conviction for “failure to exercise proper control” might be.

 

If the OP could rely on being charged with the mobile phone offence I would not hesitate to suggest he defends the matter. But he cannot rely on that. There have been cases where a driver has turned down the offer of a fixed penalty for the mobile phone offence, only to face a different offence when he was prosecuted.

 

The prosecution can amend the charge right up to the opening of the trial and they may do so when the defendant reveals the nature of their defence. I happen to think that such behaviour is an abuse of process but I’ve participated in a lengthy debate elsewhere about that and what I think is almost certainly wrong (and doesn’t matter anyway).

 

The reason why the issue has been raised is because It is very important that the OP is aware of this. It is not an attempt to derail the thread – it is fundamental to it. If he took formal legal advice a solicitor would be bound to provide him with that warning. He has an important decision to make (one which potentially could cost him many hundreds of pounds) and he cannot do so unless he is aware of all the possibilities. I’m not trying to persuade him – even subtly – which course of action to take. I’m simply making him aware of all the possible outcomes.

 

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If they did simply rubberstamp the penalty, then I think you would have a good basis for complaining that they had handed you a penalty despite your very clear statement that you are denying that you committed the offence.

 

He has not been “handed a penalty”. This is not a parking ticket. He has been accused of committing a criminal offence and the police have offered him a way to avoid prosecution. If he denies committing the offence he does not have to accept that offer and can have the matter heard in court. In fact, if he did respond in the way suggested there is every chance the police will withdraw their offer as acceptance involves agreeing to the allegation as it stands.

 

If you've decided to defend the matter, Hair Bear, you can either respond to the notice by asking to have the matter heard in court or simply ignore it entirely (you have no obligation to ask to be prosecuted). If you see my post #13 I explained what will happen next. Your first hearing will almost certainly be a "case management" hearing and before then you should be served with the evidence they intend to use to convict you.

 

You will be asked to explain why you are pleading not guilty (basically, you were not using your mobile phone - if that's the offence charged). Between then and your trial is the time to gather together any evidence you want to use to counter the prosecution's. You will be asked to disclose this to the prosecution before the trial (you cannot "ambush" them by producing evidence they have not had the opportunity to consider).

 

Let me know if I can help further.

Edited November 14, 2021 by dx100uk
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[Man in the middle]

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I am hoping they will give me an optional driving course, fingers cross

 

There is no course option for a mobile phone offence. As I said earlier, to succeed with a mobile phone offence, proof is needed of what the phone was being used for. You could try contacting the police force who issued your TOR to see what decision they have taken. The risk with that is you may "poke the hornets' nest". If your case has dropped behind a filing cabinet, they may look for it.

[Man in the middle]

Assuming there is no further correspondence in either direction, the next you will hear will be in the form of a "Single Justice Procedure Notice." They have six months from the date of the alleged offence to produce this and in many areas they take all of this. You may not get it until a week or two later. Along with this you should receive copies of the evidence they intend to rely on to convict you (which will probably be just the officer's statement).

 

If you respond to this by pleading not guilty you will be given a date for your first hearing. That will not be for the trial but will be a "case management" hearing. It will cover the basis of your plea (i.e. why you are pleading not guilty) and to sort out which witnesses need to attend, how much court time is required and to set a date. During Covid some courts have been holding some of the more straightforward of these hearings by phone. If you disagree with the officer's statement you must say so at the hearing and make it clear you would like him to attend so that you can cross-examine him.

 

Let us know when that happens. I'm certainly no expert at cross-examination (it is a skill that even some lawyers find troublesome) but I can give you a few tips.

[Man in the middle]

Thanks for letting us know. It seems they thought better of it, but it would have been nice of them to have let you know.

Just as an aside, the police no longer have to prove a mobile phone is being used for "interactive communication." The law was changed in March 2022 following the failure to convict Ramsey Barreto (a case which I mentioned). Now, doing just about anything with a mobile phone whilst driving will amount to "using" it and see a successful prosecution.