PCN using mobile while driving, but not guilty

RichS_2

I was stopped today by a copper who "saw" (!) me using a mobile while driving.

He claims he saw a mobile in my hand while driving - which is a complete lie/error/hallucination/trick of the light, or other such thing, as this was absolutely wrong.

I tried not to be too abusive and stated that surely this was some mistake as the phone was in my jacket pocket for the last hour or so and showed him the call log registering its usage.

Not to be deterred by any facts he issued a fixed penalty - £60 plus points - on the basis of what he "saw"!! What a t****r!

I'm currently drafting a letter to the issuing station - don't know if it'll do any good because I think the next step in the process is court where I'll deny the allegation. Clean license since 1985.

Any thoughts?

halibut2209

Call logs can be deleted, so that's not proof. I'm no expert but can you not pay and then go to court? You should be able to get undoctored records from the phone company proving it wasn't used.

RichS_2

I can get an e-bill online, that should suffice as a reliable call log. The copper had already suggested I might have another phone. Surely there is a burden of proof on the copper - is it enough for him to say that he saw me, even though he was parked in a side street and I was doing 40 on a main road?

I'm hoping the cop station will see sense and agree it shouldn't go to court on the basis that their accusations won't hold up under scrutiny.

TrickyWicky

You could pick him to bits in a court of law. How does he know you wern't scratching your head? - What colour was the phone? Was it a smart phone or normal phone (EG, thin, thick, wide, narrow)? Did he search you at the scene to determine if you had a second phone or just the one?

With so many possible scenarios that he won't be able to disprove, then I can't see how the court can continue proceedings against you "beyond all reasonable doubt" if you can bring enough doubt into the case.

Also forget using your online call logs as they can be easily modified and no court will take that as indisputable evidence. Get proper prints through the post from your provider instead for both outgoing AND incoming calls as you can easily prove you made no outgoing calls but they can then just accuse you of having an incoming call instead and if you've not already covered that before they accuse you then you're screwed.

Sirdan

TrickyWicky wrote: »

You could pick him to bits in a court of law. How does he know you wern't scratching your head? - What colour was the phone? Was it a smart phone or normal phone (EG, thin, thick, wide, narrow)? Did he search you at the scene to determine if you had a second phone or just the one?

With so many possible scenarios that he won't be able to disprove, then I can't see how the court can continue proceedings against you "beyond all reasonable doubt" if you can bring enough doubt into the case.

Also forget using your online call logs as they can be easily modified and no court will take that as indisputable evidence. Get proper prints through the post from your provider instead for both outgoing AND incoming calls as you can easily prove you made no outgoing calls but they can then just accuse you of having an incoming call instead and if you've not already covered that before they accuse you then you're screwed.

Despite what people may choose to believe in this scenario the Constable does not have the power to search you.
He may have the power to do so for all sorts of other unrelated matters e.g .for prohibited or stolen goods , for drugs or under terrorism powers ..but he can only search for evidence of an offence if he has first arrested you for that offence.
Such an arrest would need to meet the "neccesity" test set out in the Police and Criminal Evidence Act 1984 Section 24 (5)....most unlikely in this situation.

Trebor16

The phone bill wouldn't show up any incoming calls so while it is possible to show you didn't originate a call proving that you didn't receive one is more difficult.

As for going to court it will be his evidence against yours. You could ask him what he saw and ask questions about what type of phone he saw you using, but I doubt the fact he wouldn't be able to say if you were using an I Phone or a Nokia will have much impact.

HO87

RichS wrote: »

I can get an e-bill online, that should suffice as a reliable call log. The copper had already suggested I might have another phone. Surely there is a burden of proof on the copper - is it enough for him to say that he saw me, even though he was parked in a side street and I was doing 40 on a main road?

I'm hoping the cop station will see sense and agree it shouldn't go to court on the basis that their accusations won't hold up under scrutiny.

An e-bill will not suffice in this instance as it will not automatically include any abandonned or unconnected outgoing calls; abandonned or unconnected incoming calls or incoming messages. The type of activity report required is not, it seems (despite numerous attempts in the last few years), available to subscribers themselves but may be available to their legal representatives upon payment of a charge and only on written application. Some providers have indicated that they would only release such records on receipt of a witness order. Gaining such an order will incur additional time and cost.

However, there is a misconception that such a record would assist in disproving an allegation of phone use if it recorded no activity. All that is required to prove the offence is that a device was being used for an interactive purpose. This does not necessarily include making or receiving a call or receiving or sending a text. Such a detailed report is therefore likely to be of little use.

There is no appeal mechanism for a EFPN. You either pay it or you don't. If you don't pay, and surrender your licence, then the matter is remitted to the magistrates court where you can then plead not guilty if you so wish.

Reality Check:

Pleading not guilty may leave you open to a greater fine (if you are subsequently convicted) together with the application of costs (currently running between £60 and £110 - court area dependant - which may be higher if you require witnesses to attend) and the inescapable Victim Support Levy of £15.

Be aware that some of the hardest cases to fight are those that arise from roadside stops by officers because, whether we like it or not, police officers are automatically accorded a level of credibility in court that some consider is not always deserved. This makes disproving cases that hinge on an officer's observations alone very difficult.

Trickywicky's observation that you could "pick him to bits in court" is a comment easily made and it very much remains to be seen if it continues to hold water. Whether there is any mileage in this approach will depend on what the officer records in his statement that you would not see until such time as the prosecution case is disclosed following your formally entering a not guilty plea at court.

This may not be what you want to hear but I hope it helps.

jackieb

My nephew also got a fine and 3 points for supposedly using his phone while driving. He insists he never does this. His phone had been on the dash and was sliding about and the policeman saw him take it off the dash. When he was stopped my nephew told him the phone was switched off and he could check that no calls had been made but the policeman was having none of it.

RichS_2

There is a lot of sense in all the above. I don't know how optimistic I feel at the mo - no appeal huh. I'm livid because it's a false accusation and I'm determined to oppose it, so looks like a day with the magis - what a waste of time. Better facing fine and points vs charges, etc???

The copper said he saw my hand at my head as if speaking on the phone - so at least that indicates a charge of making/receiving a call, not text or interactive - I'll have evidence contradicting that. Of course he might not formally submit such a statement, he already knows how I feel about the charge. He was v. young and a bit angry that I didn't just roll over. And he was happy to LIE to my face telling me he saw me, not conceding he could be mistaken so I reckon his story might change.

HO87

RichS wrote: »

There is a lot of sense in all the above. I don't know how optimistic I feel at the mo - no appeal huh. I'm livid because it's a false accusation and I'm determined to oppose it, so looks like a day with the magis - what a waste of time. Better facing fine and points vs charges, etc???

The copper said he saw my hand at my head as if speaking on the phone - so at least that indicates a charge of making/receiving a call, not text or interactive - I'll have evidence contradicting that. Of course he might not formally submit such a statement, he already knows how I feel about the charge. He was v. young and a bit angry that I didn't just roll over. And he was happy to LIE to my face telling me he saw me, not conceding he could be mistaken so I reckon his story might change.

There is always the possibility that he adamantly believes what he saw and is not therefore lying. As suggested in my post, the phone does not need to be used to send or receive a call/text but simply an interactive purpose. This could amount to listening - via a speaker, for example - to music or ringtones etc you have saved on it; setting up a voice command - the list could be rather long.

By the way, did you actually read about what would be acceptable to a court by way of documentary evidence? Obtaining that document will take time and could incur significant cost if you have to obtain a witness order/subpoena from the court.

Much as it will go against the grain, I'm sure, you might want to think about what this could cost you. You would need to make the decision quickly given that you have to surrender you licence shortly, if you are going to pay the EFPN.

scheming_gypsy

Although he will have to turn up at court to give evidence (i believe). So if he's going off shakey evidence that he was parked in a side street and only guessed that you were using the phone.... you can gamble on the odds of him turning up to give evidence.