Help wrongly accused of using mobile phone whilst driving

Ivrytwr3

I think the officer stating the wrong colour of the phone is an important point to mantion in court.

Agree with this. Take in your receipt and phone and tell the court the officer alleges to have seen DH with a black phone, he does not own a black phone, but a silver one and produce phone/receipt. If the officer was mistaken about the colour of the phone then perhaps he was mistaken about seeing one at all.

However, if there are no logs of calls it is down to his word against yours and without reasonable proof the court will be more likely to side with the officer.

Good luck though.

chuckles1066

madmax2 wrote: »

Surely for my partner to be found guilty this has to be done with unreasonable doubt?

I fear that if you pursue this via a magistrates court, your partner will lose.

"Beyond reasonable doubt" means that the allegation must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person. There can still be a doubt, but only to the extent that it would be "unreasonable" to assume the falsity of the allegation.

WRT the first point; "a reasonable person" does not necessarily include a magistrate when he/she is choosing between the evidence of a police officer and that of a member of the public.

WRT the second point, in the absence of video/photographic evidence, there will always be doubt as it then becomes one person's word against another.

It is, sadly, a reflection of the workings of the legal system that, with probably very little evidence except the testimony of a police officer, your partner will be found guilty.

Kislaya

1. I agree with the assertion that people who truly consider themselves to be innocent are far more likely to contest a fixed penalty notice in court (than someone who is guilty of an offence).

A court should recognise and give more credibility to such a defendant, as common sense dictates that a 'guilty' person would not wish to take such a big risk.

If a person is prepared to vigorously defend himself in court, this surely indicates that he considers himself innocent of any crime, as most people would consider it easier and less traumatic to simply pay the 30 pounds fine.

As an example of this principle, see the following link, which relates to mobile speed cameras rather than mobile phones:

http://www.bbc.co.uk/insideout/southwest/series7/speed-cameras.shtml

Notice in particular the following extract from the above article:

"He was confident that he had not broken the speed limit and contested the case in court. Former policeman Paul Cox appealed against his conviction – and won. The court found there were discrepancies in the speed gun evidence used against him. Paul had the confidence to contest his case, but many simply accept the fines even though they feel they are in the right."

2. In a criminal court, the burden of proof is 'beyond all reasonable doubt'. (As opposed to a civil case, in which the burden of proof is 'on the balance of probabilities'.)

This means that the criminal court must find a person guilty beyond all reasonable doubt on the basis of evidence submitted by the prosecution. In other words, what the policeman has recorded and stated to the court.

I do not know the details of your case, but if your partner is innocent, then obviously the policeman cannot have taken photographic or video evidence of him using a handheld mobile phone while driving. Note that your partner should not have been even holding the phone while driving, which I understand he was not according to your statements.

Your partner should argue and state the inconsistencies between the facts as he knows them and the policeman's statement. Your partner should respectfully state and submit to the court that the policeman made a simple and honest mistake.

Presumably your partner rubbed his ear briefly and momentarily (a reflex action caused by a sudden itch, perhaps). He should emphasize to the court that he has always been aware of the legal requirement not to allow any distractions to affect his driving and the need to have proper control of a vehicle at all times. (Your partner was not charged with not having proper control of a vehicle, so he should be fine in this respect.)

As you know, your partner's phone records can be checked to determine whether he was using his phone at the relevant time. As your partner is apparently innocent, and as the burden of proof falls on the prosecution to make its case against your partner, he should not worry about this.

On the basis of information supplied, it seems that the policeman can rely only on the notes he made at the time of issuing the fixed penalty notice. These do not seem accurate, complete or sufficient to me.

Obviously you should not rely on this advice which is given without full knowledge of your case and without any legal liability or responsibility, but I think that the court is likely to state that there is not enough evidence to find your partner guilty beyond all reasonable doubt.

Good luck and let me know if you have any further questions.

Kislaya

madmax2 wrote: »

Thanks for all your replies and advice - it is very much appreciated. We have decided to take this to the court by pleading not guilty. My partner feels very strongly about it as he is innocent. If he were guilty he would have just paid the £30.00 fine (that's what it was in Oct 06 with no points endorsed). Were just hoping that the court will take this into account as surely anyone guilty would not pursue it like we are they would just pay the £30.00.
The officer claims that he saw my partner with the phone in his left hand to his ear (My partner was acually rubbing his ear with your right hand) He also states that when he stopped my partner the phone was produced from his left hand pocket of his jacket. This would make it almost impossible if he had been using the phone with his left hand to put it back into his left pocket!! Just wondered what kislaya makes of this? Surely for my partner to be found guilty this has to be done with unreasonable doubt?

1. I agree with the assertion that people who truly consider themselves to be innocent are far more likely to contest a fixed penalty notice in court (than someone who is guilty of an offence).

A court should recognise and give more credibility to such a defendant, as common sense dictates that a 'guilty' person would not wish to take such a big risk.

If a person is prepared to vigorously defend himself in court, this surely indicates that he considers himself innocent of any crime, as most people would consider it easier and less traumatic to simply pay the 30 pounds fine.

As an example of this principle, see the following link, which relates to mobile speed cameras rather than mobile phones:

http://www.bbc.co.uk/insideout/southwest/series7/speed-cameras.shtml

Notice in particular the following extract from the above article:

"He was confident that he had not broken the speed limit and contested the case in court. Former policeman Paul Cox appealed against his conviction – and won. The court found there were discrepancies in the speed gun evidence used against him. Paul had the confidence to contest his case, but many simply accept the fines even though they feel they are in the right."

2. In a criminal court, the burden of proof is 'beyond all reasonable doubt'. (As opposed to a civil case, in which the burden of proof is 'on the balance of probabilities'.)

This means that the criminal court must find a person guilty beyond all reasonable doubt on the basis of evidence submitted by the prosecution. In other words, what the policeman has recorded and stated to the court.

I do not know the details of your case, but if your partner is innocent, then obviously the policeman cannot have taken photographic or video evidence of him using a handheld mobile phone while driving. Note that your partner should not have been even holding the phone while driving, which I understand he was not according to your statements.

Your partner should argue and state the inconsistencies between the facts as he knows them and the policeman's statement. Your partner should respectfully state and submit to the court that the policeman made a simple and honest mistake.

Presumably your partner rubbed his ear briefly and momentarily (a reflex action caused by a sudden itch, perhaps). He should emphasize to the court that he has always been aware of the legal requirement not to allow any distractions to affect his driving and the need to have proper control of a vehicle at all times. (Your partner was not charged with not having proper control of a vehicle, so he should be fine in this respect.)

As you know, your partner's phone records can be checked to determine whether he was using his phone at the relevant time. As your partner is apparently innocent, and as the burden of proof falls on the prosecution to make its case against your partner, he should not worry about this.

On the basis of information supplied, it seems that the policeman can rely only on the notes he made at the time of issuing the fixed penalty notice. These do not seem accurate, complete or sufficient to me.

Obviously you should not rely on this advice which is given without full knowledge of your case and without any legal liability or responsibility, but I think that the court is likely to state that there is not enough evidence to find your partner guilty beyond all reasonable doubt.

Good luck and let me know if you have any further questions.

madmax2

Thanks again for all your replies and advice.

An intersting note is the incident occured in Oct 2006 and the police officer's statement is dated 20.2.07 (4 months later) which maybe explains the fact why there are some inaccuracies i.e. the phone being black when it is in fact silver, the fact that he claims my partner had the phone in his left hand in his left ear (my partner was actually itching his RIGHT ear) - perhaps the details were not that fresh for him after 4 months!

Something else I am a bit unsure about is on The Summons paperwork it says if you intend to plead not guilty to send it back stating this and you will be given a further date for the court hearing. It also mentions:

"APPLICATION: The prosecutor applies for administrative costs in the sum of £40.00 in this case. The facts of the prosecution case are contained within the witness statements, please read them carefully. It is also important that you read the accompanying documentation. Please return the reply form promptly. Costs of £40.00 will be applied for if you plead guilty, however costs may be higher for a not guilty plea or if teh case has to be proved against you" Does this mean that we have to pay £40.00 anyway or only if we lose?


"Written statements have been made by the witnesses and copies enclosed. Each of these statements will be tendered in evidence before the Magistrates unless you want the witness to give oral eveidence. If you want any of these witnesses to give oral evidence you should inform me as soon as possible. If you do not do so within 7 days of receiving this notice and the offence is tried by the Magistrates Court you will lose your right to prevent the statements being tendered in evidence and you will be able to require the attendance of witnesses only with the leave of the court. if you have not informed me that you want the witnesses to attend they will not be present when you appear before the Magistrates (or the case is heard in your absence) and delay and expense will be caused if they then have to be called.

Were not sure whether we should request the officer to be present or not. Perhaps kislaya could advise me on this one. If we do request him to be present does that mean we will have to pay more costs if we lose the case? I suppose if he isn't there it might be better for my partner as all the court will have is his statement with the inaccuracies! Any views would be greatly appreciated.

I have checked both our home and motor insurance for legal cover but unfortunately we are only entitled to advice. It has been suggested to us that we should seek representation from a solicitor which I have made enquiries about but we would have to pay as they don't offer legal aid and this would be very costly. Does anyone have any other ideas?

This whole situation is causing both me and my partner unwarranted stress so depending on what the outcome is I itend to take it further if need to the Police Ombudsman/Court Ombudsman. Any help would be greatly appreciated and thanks again to everyone who replied.

tillson

I have just read through this thread. A point that is not very clear is whether your partner was using the phone to scratch his ear. I think someone has suggested that this may be the case. If he was, the immediate questions that spring to my mind are, Why was he using the phone to scratch and what was it doing in his hand in the first place if he was driving?

Please forgive me if I am wrong, but I think it will be asking too much for people to believe that he was driving along, suddenly had an itchy ear and then thought, I'll get my mobile phone out of my pocket, scratch my ear with that and then put it back into my pocket. Is that easier than just lifting your hand off the wheel and rubbing your ear? Certainly not.

Again I sincerely apologies if I am mistaken and your partner did not "use his phone to scratch his ear."

Al1x

I read it as the phone was in their pocket and not taken out until the police stopped them!

tillson

It was the post by Valera on page one that made me wonder. It reads:

[he had actually been rubbing his ear]

it sounds a bit strange as you wold not normally drive a vehicle holding a mobile phone in your hand (unless you want to make a phone call or answer the phone). in any casy rubbing an ear with a mobile phone while driving is technically using a mobile while driving.
from the lawer's point of view.

Perhaps Madmax2 could clear this one up for us? What did your partner use to scratch his ear? Finger or Phone?

da_boy_wonda

I had this exact same thing happen to me!

I was driving along and briefly touched my right ear lobe with my right hand (a little itch/massage kinda thing). This might of been out of nerves as I had a Police traffic car behind me (dont know why I get nervous when they drive behind me, got a clean licence and well kept car, but it just feels like your back on your test again lol). So I got pulled over and asked why I was using my phone while driving, I was shocked and explained (politely) that I had my phone in my jeans pocket and it would have almost impossible to get it out while driving. I then took it out of my pocket and handed it to the officer and told him to check the call log. He had a real attitude (probably because he now relaliased he was wrong) and told me I could have had deleted the log......this went on for a few minutes while his mate checked me and the car out. My argument to him was 'you could not have seen me on my phone a I wasnt on it, you THOUGHT you saw me on it, and now you have investigated the matter you were mistaken' .... this didnt go down too well, but I just needed to get my point across.

I eventually got him to drop the mobile accusation......only to be accused of speeding! I then pointed out that I dont speed on a normal day (genuinely!) so why would I speed (in a 30 zone) with a police traffic car behind me!?!? I asked for some proof, as his car is video equipped and he said it wasnt recording but he didnt need that to give me a ticket.

He 'let me off' after delaying me by about half an hour and his final words were 'keep the speed down and stay off your phone while driving' - madness!!!

This isnt a dig at police in general, as both my brothers are officers of the law and from what they tell me I just got unlucky and the guy who pulled me over is known to be an idiot, however I was advised not to put in a complaint as life 'could be made difficult for me' by local police.

Fingers crossed, justice will previal and as advised I think go in with the attitude that you can completely see why the stop took place and it was an easy mistake to make on behalf of the officer but on this occasion he just simply made a human error as happens to the best of us....very humble.

Ivrytwr3

Costs of £40.00 will be applied for if you plead guilty, however costs may be higher for a not guilty plea or if teh case has to be proved against you"

You will pay £40 or more if you plead not guilty and the court finds in favour of the officer ie you lose. No you do not pay this fee if you win.

I would advise having the officer present as lot's don't show up, forget about it etc which is very good for you if this happens. However, he may show and then put up a good case against you. There is no right or wrong answer here!

I wouldn't stress over it, have your day in court, if you win or lose put it down to life experience. If you do lose, yes you'll be hit in the pocket and lose faith in the justice system, but it's not as if your OH is going to jail.