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

[BankFodder]

You say you don't have any points – that's fine but might it be because they have expired.

Please can you tell us a bit about your driving history – it's very important. Particularly have you ever been booked for using a mobile phone before?

[Hair Bear]

No, I've never been done for phone use - I don't really use it away from the car let alone in it! I've had three points a few times, but never more than three at any one time. These have all been for doing 38 in a 30 zone. 

 

What's the order of events, btw? If I write to them in order to say i will contest, do they then send me what evidence they have? If so, can I then pick that apart before going to trial, or do I just have to do that in a court room?

[BankFodder]

I'm afraid I don't know the order of events. It's outside of my experience – but I do think that you may as well prepare your statement and accompanying documents and then send them along attached to your letter telling them that you want to go ahead with the trial.

I don't think we are dealing with people here who are going to start inventing things. It's gotten beyond that. We are not dealing with dodgy car dealers or dodgy moneylenders or utility companies et cetera.

And actually I think that they have to take a decision to prosecute. I'm not sure that there is actually a decision in place yet. They will have to weigh the evidence and that means that somebody will have to see what they've got from the police and if you provide your own version, you may be able to pre-empt prosecution.

Maybe somebody will come along with better experience and say different.

Have you got the print outs of your telephone usage?

[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
spacing

[ashmk]

I completely believe you that you wasn't using your phone. But, take the course and move on or you'll be wasting an untold amount of time and money on this and it's not worth it.

[MRPnoy]

Hi,

Can i ask if you took the course instead? And how long when you received a coomunication from the police? After the apprehension.

 

Thanks.

Because i was caught holding my phone too last 20th of Nov 2021 and until now no communication yet from police officers. They just give me a paper (Traffic Offense Report) which states nothing to do on my part but to wait.

[Hair Bear]

No, I didn't opt for the course, going to stand my ground instead. Can't recall the length of time that it took for them to send me anything but it was within a month.

[MRPnoy]

4 hours ago, Hair Bear said:

No, I didn't opt for the course, going to stand my ground instead. Can't recall the length of time that it took for them to send me anything but it was within a month.

Thanks for your reply.

I was stopped last 20th of Nov, and until now havent received any communication yet from police. They just give me a piece of paper (Traffic Offense Report). It will revoke my license since i am a new driver. I am hoping they will give me an optional driving course, fingers cross

[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.

[Manxman in exile]

On 07/01/2022 at 11:35, Hair Bear said:

No, I didn't opt for the course, going to stand my ground instead. Can't recall the length of time that it took for them to send me anything but it was within a month.

 

Can I ask, did you reply and reject the offer of a course or did you just ignore it?  Presumably you've not received a SJPN yet?

 

I'd be interested to know how it unfolds.  Thanks

[Hair Bear]

4 hours ago, Manxman in exile said:

 

Can I ask, did you reply and reject the offer of a course or did you just ignore it?  Presumably you've not received a SJPN yet?

 

I'd be interested to know how it unfolds.  Thanks

I actually wrote asking what evidence they had. I knew they couldn't send me any, just wanted to buy time. I got a letter back after three or so weeks saying they don't give evidence at this point, and again offered me a course or the points - with a fresh start date 'from the [new] date of this letter', it should be noted. Note also that the person responding began their letter by saying I was spoken to by the police officer who saw me with a phone, which of course was not the case. I doubt I can use that in my defence, but I also believe that if i had written back pointing out the error, they would have sent yet another fresh date from which I had the required weeks to respond. I have a habit of kicking the can down the road, occasionally this tactic works for me. To that end, no I did not tell them I am going to contest. Will just let them send me whatever it is they will send in their next step.

Edited January 12, 2022 by Hair Bear

[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.

[Hair Bear]

Thanks, Man in the middle.

[dx100uk]

open

 

[Hair Bear]

Just to update this, it's been well over a year now and I never received anything, no letter or communication otherwise, so am assuming they just closed it. I checked my licence recently and it was valid with no changes, so I haven't missed anything and all is well. Thank you all for your help.  

[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.

[The GodMother]

But what if you dont have a mobile but u was getting a hanky out of or in pocket and they accuse you.