S172(2) alledged offence of using an electronic device whilst driving

Gerrard00004

Morning all,

Just after a bit of advice. I haven't attached any documentation as of yet but I am happy to do so if need be.

So the incident; (I have tried to keep it as brief as possible)

• I was driving a relatives van (fully insured) on the motorway - on my way back from work. My phone fell from its cradle onto the .... so I picked it up and tossed it onto the passenger seat.
•  As, I did so, a Police Van passed on the outer lane. Instantly I thought, oh ****, the Police Van then slowed down, as if for me to catch up and as I pull alongside side them - expecting to be pulled over - I indicated into the slow lane. 
• Police van, without any interaction sped up and drove off.
• Relative received S172, and forwarded my details in the required time frame.

*NB S172 had no reference number, instead it had a heading saying 'Ask For' and then the PC's number and surname.

• Feeling aggrieved and not want the process to go through the Legal process I emailed 'named PC'. Said PC responded and asked the reason for me contacting them. I replied, detailing my observation of the Police Van's movements, without referring to the alledged offence.
• No response.
• Recently, (after a few months) I received an S172(2) regarding the same alledged offence. Again no reference number, requiring me to furnish them with the name and address of the driver of the vehicle on the above occasion.   

Any advice on how to progress this would be appreciated. I know I am not guilty of the charge, yes I picked up the object but my eyes were on the road. I fully observed the Police van's movements and surely they should of pulled me over if they had any concerns.

Thanks in advance, 
Gerrard

Car_54

At the moment, the only thing you can do is reply naming yourself as driver.

Aretnap

First of all, you need to complete and return the s172 request naming yourself as the driver, whether or not you think you committed the underlying mobile phone offense. If you don't, you commit a new offense, for which the penalty is a mandatory 6 points and a substantial fine. By naming yourself as the driver you are not admitting that you were using your phone, you are just admitting that you were driving the van at the time in question.

The fact that you've previously sent a response of a sort by Email isn't sufficient - the response to a s172 request has to be made in writing, and signed, and there's case law to say that stilling the information in another format doesn't meet the requirement (mainly because the law is written so as to allow a written, signed response to be used in court as evidence of the driver's identity).

Once you return the s172 details correctly you are likely to receive the offer of a fixed penalty (6 points and £200) for mobile phone use, and if you want to contest the charge you should not accept this but opt for a court hearing instead. 

Ultimately this is going to come down to the question of whether you were using your phone. The law was recently changed to clarify that "using" encompasses using pretty much any of the phones functions, not just making a phone call. However it does still require that you "use" the phone to commit the offence - merely "holding" or "touching" it is not illegal. So on the face of it picking up a phone which has fallen out of it's cradle is not an offense so long as you don't unlock the screen, read a notification or similar while you have it in your have. The complicating factors would be

(1) If the phone was in use continually, say playing music or as as a satnav, then an arguament can be made that you continued to use it for that purpose while it was in your hand, in which case the offense was committed and 
(2) The police officer's recollection of what he thinks he saw may not match your own recollection - he may think he saw you turn the phone round and look at the screen, in which case it will come down to which account the magistrates believe. 

Note that if you were to be convicted after a court hearing you would still get 6 points for the mobile phone offense, but the fine and costs would be significantly more than £200 fixed probably.

Things that aren't relevant include the fact that the officer didn't stop you at the time (he doesn't have to, and he might have had something more pressing to do); the fact that the s172 request didn't have a reference number (it doesn't have to) and the fact that you kept your attention on the road (the prosecution only have to prove that you were using a handheld device, not that you were actually distracted by it). Don't get sidetracked by any of those things - the key question is whether what you were doing with your phone take within the definition of using it.

Mildly_Miffed

Gerrard00004 said:

So the incident; (I have tried to keep it as brief as possible)

• I was driving a relatives van (fully insured) on the motorway - on my way back from work. My phone fell from its cradle onto the .... so I picked it up and tossed it onto the passenger seat.
•  As, I did so, a Police Van passed on the outer lane. Instantly I thought, oh ****, the Police Van then slowed down, as if for me to catch up and as I pull alongside side them - expecting to be pulled over - I indicated into the slow lane. 
• Police van, without any interaction sped up and drove off.
• Relative received S172, and forwarded my details in the required time frame.

*NB S172 had no reference number, instead it had a heading saying 'Ask For' and then the PC's number and surname.

• Feeling aggrieved and not want the process to go through the Legal process I emailed 'named PC'. Said PC responded and asked the reason for me contacting them. I replied, detailing my observation of the Police Van's movements, without referring to the alledged offence.
• No response.
• Recently, (after a few months) I received an S172(2) regarding the same alledged offence. Again no reference number, requiring me to furnish them with the name and address of the driver of the vehicle on the above occasion.   

Any advice on how to progress this would be appreciated. I know I am not guilty of the charge, yes I picked up the object but my eyes were on the road. I fully observed the Police van's movements and surely they should of pulled me over if they had any concerns.

The police will have either photos, video footage, or a police officer's witness statement of the driver of registration AB12CDE hand-holding a mobile phone while driving.

They have written to the registered keeper to ask who was driving. The registered keeper then replied to nominate you.

You have now received an s172 in your name. You need to reply to say that it was you, or you will receive six points, a fine, and an MS90 endorsement for failure to identify the driver.

The police then reply to offer you a course, a fixed penalty (6pts , £200), or say they'll see you in court.

If you wish to dispute the charge, then you need to refuse any course or penalty offer. You then produce your evidence that you were not using the device for interactive communication at the time you were holding it in your hand whilst driving.

The police vehicle's movements are completely irrelevant.

Is there a reason the phone couldn't just stay in the footwell until it was safe to retrieve it? Might any video footage show you being temporarily unable to see where you were going or otherwise not in control of the vehicle while you were bent down to retrieve it?

TooManyPoints

You mention "a few months". So what's the timeline for all this. Specifically, what was the date of the alleged offence and what was the date of the s172 request you received?

HillStreetBlues

I'm not up with this, with a S172 does it name the alleged offence or is it solely to identify the driver?

TooManyPoints

HillStreetBlues said:

I'm not up with this, with a S172 does it name the alleged offence or is it solely to identify the driver?

It simply has to request he driver's details at a time and place "Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies..."

Unlike a NIP (which has to specify the "nature of the offence") no other details are required.

HillStreetBlues

TooManyPoints said:

HillStreetBlues said:

I'm not up with this, with a S172 does it name the alleged offence or is it solely to identify the driver?

It simply has to request he driver's details at a time and place "Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies..."

Unlike a NIP (which has to specify the "nature of the offence") no other details are required.

In that case, might the alleged offence end up being "careless driving" for the actual retrieval of the mobile?

TooManyPoints

Or maybe "not in proper control". Who knows?

eskbanker

Gerrard00004 said:

I was driving a relatives van (fully insured) on the motorway - on my way back from work. My phone fell from its cradle onto the .... so I picked it up and tossed it onto the passenger seat.

Mildly_Miffed said:

Is there a reason the phone couldn't just stay in the footwell until it was safe to retrieve it? Might any video footage show you being temporarily unable to see where you were going or otherwise not in control of the vehicle while you were bent down to retrieve it?

For some reason, OP is coy about where the phone actually fell, but yes, retrieval from a footwell would be substantially more risky than, say, the top of the dashboard.

Aretnap

HillStreetBlues said:

TooManyPoints said:

HillStreetBlues said:

I'm not up with this, with a S172 does it name the alleged offence or is it solely to identify the driver?

It simply has to request he driver's details at a time and place "Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies..."

Unlike a NIP (which has to specify the "nature of the offence") no other details are required.

In that case, might the alleged offence end up being "careless driving" for the actual retrieval of the mobile?

Unlike use of a mobile phone, careless driving would require a NIP (which may or may not have been served on the registered keeper - if not it's too late now).