Filmed by cyclist touching a device

cymruchris

jsrose said:

Ok so an update - firstly i have a SJPN that i need to plea by 2 November.  I have tried to log in but it is not accepting my case URN.  I have also tried to view the evidence via an email they sent me - but it has been removed and i can’t access it

Also i paid £200 in a panic in September to The Court and yesterday i have received it refunded.

I’m confused as i haven’t sent my plea in yet.  

As with others, I'm also confused as to what you've spent £200 on - and how you've got it back again.

How did they get your email address to send you the 'evidence'?

Were you in contact with them by phone once you'd received the notice?

What email address has it come from? (Not the one that displays on your screen - but the underlying email address)

DanDare999

MalMonroe said:

jsrose said:

Ok so an update - firstly i have a SJPN that i need to plea by 2 November.  I have tried to log in but it is not accepting my case URN.  I have also tried to view the evidence via an email they sent me - but it has been removed and i can’t access it

Also i paid £200 in a panic in September to The Court and yesterday i have received it refunded.

I’m confused as i haven’t sent my plea in yet.  

Hi, I'm confused too.

You said -

". . . I’m unable to log on with my Case URN - plus the fact that the evidence has been removed from an email i was sent - what do you think will happen?  Plea is needed by 2 November but postal strikes all next week?  Really hoping case will be dropped and I’m getting my £200 back."

You can't access any of the information. You paid £200 in September and you're received a refund? What was the £200 for?  The fact that it's been refunded is a little weird.

And why is everything in such a big rush? Court cases usually take a while to be processed before they actually issue a date.

If you want to make a defence - which I certainly would - then you need to be able to see ALL the 'evidence' against you. Have you had sight of it at all? Only when you've seen that can you prepare any kind of comprehensive case.

And why are the police simply taking the cyclist's photographic evidence as proof positive of any offence having been committed? How near to your vehicle was this cyclist and didn't you notice him filming you at all?  

The police will be able to obtain information from your phone to either prove or disprove whether or not you were actually using the phone at any time, surely?

If it were me, given the confusion surrounding this case, I'd be phoning the court (there will be a number somewhere on the information you've been sent, there always is on court documents. If you can't find it, you can use the information in this link to find it - https://www.gov.uk/find-court-tribunal) and telling them that you cannot access the evidence that you have been sent and you want to make a defence but you are unable to do so since you don't have the information necessary.

After that you could try contacting Citizens Advice for some help. 

https://www.citizensadvice.org.uk/law-and-courts/legal-system/finding-free-or-affordable-legal-help/

(Are you sure that this is a real thing, though? It really does seem very fishy to me.)

How would they do that?

TooManyPoints

What lead you to playing £200, a fixed penalty notice?

Indeed. Why did you pay £200 to a court? Were you offered a fixed penalty but left it too late to pay? If so, that would still have resulted in six points.

The mobile phone legislation was changed on 25th March this year following the High Court ruling in the case of Ramsey Barreto. Long story short, Mr Barreto was caught using a phone to film the scene of an accident as he was driving on the opposite carriageway. He was convicted in the Magistrates’ Court but successfully appealed to the Crown Court on the basis that he was not using the phone for “interactive communication.” The CPS appealed that decision to the High Court which found in Mr Barreto’s favour.

The law was subsequently changed and it is now an offence to use a mobile phone for virtually any purpose. The relevant passage in the law says this:

….the word “using” includes the following—

(i)illuminating the screen;

(ii)checking the time;

(iii)checking notifications;

(iv)unlocking the device;

(v)making, receiving, or rejecting a telephone or internet based call;

(vi)sending, receiving or uploading oral or written content;

(vii)sending, receiving or uploading a photo or video;

(viii)utilising camera, video, or sound recording functionality;

(ix)drafting any text;

(x)accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;

(xi)accessing an application;

(xii)accessing the internet. 

You can see that the list is not exhaustive and it would be up to the court to decide, based on the evidence they have, whether they considered you were “using” the phone or not.

The important thing here is that you see the evidence against you. You are entitled to see the “Initial Details of the Prosecution Case” (IDPC) before you enter a plea. This basically is the evidence the police intend to rely on to convict you. If you don’t have it you should contact the court. In your case I imagine they intend to rely on the cyclist’s video but may require evidence from the cyclist himself as well. If you plead not guilty, you are entitled to cross examine any witnesses whose evidence the Crown intends to rely on. They will probably rely on the cyclist (even though the principal evidence would be the video) so if you insist he will have to attend.

You should beware that the cost of failure is high. You will be subject to an income related fine of half a week’s net income, a “Victim Surcharge” of 40% of the fine (or 10% if the offence was committed before 16th June 2022). But you will also be ordered to pay a contribution towards prosecution costs and this will be at least £620. You will also have six points imposed.

You can see that it is very important that you see the evidence so that you can make your decision as being convicted following a trial is very expensive. If you plead guilty the fine will be reduced by a third and the prosecution costs will be just £85.

user1977

TooManyPoints said:

What lead you to playing £200, a fixed penalty notice?

The mobile phone legislation was changed on 25th March this year following the High Court ruling in the case of Ramsey Barreto. Long story short, Mr Barreto was caught using a phone to film the scene of an accident as he was driving on the opposite carriageway. He was convicted in the Magistrates’ Court but successfully appealed to the Crown Court on the basis that he was not using the phone for “interactive communication.” The CPS appealed that decision to the High Court which found in Mr Barreto’s favour.

The law was subsequently changed and it is now an offence to use a mobile phone for virtually any purpose. The relevant passage in the law says this:

….the word “using” includes the following—

(i)illuminating the screen;

(ii)checking the time;

(iii)checking notifications;

(iv)unlocking the device;

(v)making, receiving, or rejecting a telephone or internet based call;

(vi)sending, receiving or uploading oral or written content;

(vii)sending, receiving or uploading a photo or video;

(viii)utilising camera, video, or sound recording functionality;

(ix)drafting any text;

(x)accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;

(xi)accessing an application;

(xii)accessing the internet. 

You can see that the list is not exhaustive and it would be up to the court to decide, based on the evidence they have, whether they considered you were “using” the phone or not.

But the device you're "using" still needs to be a hand-held phone or other device - that bit hasn't changed i.e. you need to be holding it.

The point of the change in legislation was because the original offence only covered "making or receiving a call or performing any other interactive communication function" i.e. being online in some way, so you weren't committing an offence merely by holding the phone while using the camera or satnav offline. But such activities now are treated in the same way as making a call etc.

DanDare999

user1977 said:

TooManyPoints said:

What lead you to playing £200, a fixed penalty notice?

The mobile phone legislation was changed on 25th March this year following the High Court ruling in the case of Ramsey Barreto. Long story short, Mr Barreto was caught using a phone to film the scene of an accident as he was driving on the opposite carriageway. He was convicted in the Magistrates’ Court but successfully appealed to the Crown Court on the basis that he was not using the phone for “interactive communication.” The CPS appealed that decision to the High Court which found in Mr Barreto’s favour.

The law was subsequently changed and it is now an offence to use a mobile phone for virtually any purpose. The relevant passage in the law says this:

….the word “using” includes the following—

(i)illuminating the screen;

(ii)checking the time;

(iii)checking notifications;

(iv)unlocking the device;

(v)making, receiving, or rejecting a telephone or internet based call;

(vi)sending, receiving or uploading oral or written content;

(vii)sending, receiving or uploading a photo or video;

(viii)utilising camera, video, or sound recording functionality;

(ix)drafting any text;

(x)accessing any stored data such as documents, books, audio files, photos, videos, films, playlists, notes or messages;

(xi)accessing an application;

(xii)accessing the internet. 

You can see that the list is not exhaustive and it would be up to the court to decide, based on the evidence they have, whether they considered you were “using” the phone or not.

But the device you're "using" still needs to be a hand-held phone or other device - that bit hasn't changed i.e. you need to be holding it.

The point of the change in legislation was because the original offence only covered "making or receiving a call or performing any other interactive communication function" i.e. being online in some way, so you weren't committing an offence merely by holding the phone while using the camera or satnav offline. But such activities now are treated in the same way as making a call etc.

Do you physically need to be holding it or is using it while not in a cradle enough?

TooManyPoints

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

DanDare999

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

That doesn't answer the question. User1977 claims you physically need to be holding the phone. Is that the case? Using it when not in a cradle would make it handheld would it not?

baser999

Unless I’ve simply missed it somewhere, did OP get sight of the video evidence or has the summons been issued by way of just the cyclists say so. I’ve recently been picked up for speeding (36 in a 30 zone) and the Police notice included a link to video footage of me ‘setting the tarmac alight’
As for OPs concern about further points, will the reason for the earlier points have any bearing? OP might perhaps be a serial mobile user? 

BikingBud

Grey_Critic said:

As an aside I regularly see cyclists using a mobile phone whilst riding along

Deliveroo riders use them as a Sat Nav. The law really needs to apply to everyone.

As another aside and sorry to the OP but out yesterday I saw a least 5 people on mobile phones, often drifting around the road, driving slowly, well below the speed limit, all indicators of driving without due care and attention.

All road users should be encouraged to call out, harangue and embarrass people that they see flouting the law. As road users the poor behaviour of a few puts the safety of us all in jeopardy.

user1977

TooManyPoints said:

Do you physically need to be holding it or is using it while not in a cradle enough?

"Using" is not defined and it would be a matter for the court to decide. It is quite clear from the examples given of "using" that virtually any interaction with a hand-held device can be determined as using. There is no case law on this as far as I am aware (the revised legislation is only six months old) and a Magistrates' Court will make its own decision based on the evidence they have. One thing they may ask themselves is, if the phone was not being "used" for any purpose, why was it being touched?

The point is that the thing you're using needs to be a 

"(a) a hand-held mobile telephone; or

(b) a hand-held device of a kind specified in paragraph (4) [two-way radios and the like]"

in order to be caught by the legislation, and I quoted the definition of "hand-held" back on page 1. You need to be holding it. The recent change only adds to the types of things you're not allowed to do with the hand-held device.