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

Gerrard00004

TooManyPoints said:

You need to ensure your response is posted so as to arrive within the 28 days (which begins on the date shown on the s172 request). Allow two working days (Mon-Fri) for it to arrive. Take a copy of your response and get aa free certificate of posting from the Post Office.

The police must then produce a "written charge" and a "Single  Justice Procedure Notice" which must be done before the six months is up. You would normally receive notification of proceedings within two to three weeks after that.

On another note (purely academic, I would suggest), I’ve had dialogue with an acquaintance who is legally qualified and specialises in road traffic matters.

His opinion is the same as mine. He goes further by explaining that whilst service of  NIP (for certain offences) is mandatory, its content – apart from the nature of the offence and the time and place where it occurred – is advisory. He expanded on my explanation by saying that the aim of the law is to enable the accused to identify and recall the incident in question while it is still relatively fresh in his mind, and to potentially enable him to gather and preserve any evidence that might assist any defence.

So ultimately it would be for  the court to decide if a NIP met the requirements of the law and his view is the same as mine – that a NIP which alleged a mobile phone was being used whilst driving would be sufficient if  a “catch all” charge was raised as a result of that allegation.

Thank you for your response and taking the time and effort to ask someone else.

A question if you may, what do you mean when you say "a "catch all" charge was raised as a result of that allegation".

As mentioned, I will return the S172 within the time frame and take your advice on getting a post office certificate.

I will advise if/when I receive further correspondence from the Police.

Thanks again.

Car_54

Gerrard00004 said:

Okell said:

Ectophile said:

Okell said:

Gerrard00004 said:

... The phone fell on top of the dashboard, I picked it up and tossed it onto the passenger seat...

If this were to get to court I think you are likely to be asked why you felt it necessary to move the phone at all - whether it fell on the floor, the dashboard or somewhere else.  Why couldn't you have left it where it was until you'd stopped driving?

If it's fallen out of a phone holder and onto the dashboard, then the next time you go around a corner, it's likely to slide off and fall onto the floor.  Possibly into the driver's footwell, where it could present a hazard.

Grabbing it off the dashboard and throwing it onto the passenger seat seems like a sensible thing to do.

Yes - but I wanted to hear what the OP's answer was rather than to suggest a possible justification to him.

Mildly_Miffed said:

Ectophile said:

Grabbing it off the dashboard and throwing it onto the passenger seat seems like a sensible thing to do.

Perhaps not while there's a marked police van next to you, though...

Quite.  The OP obviously doesn't check his mirrors enough

 I felt no need to check my mirrors as I was not doing anything wrong.

The Highway Code lists many situations where mirrors should be checked. Strangely, doing something wrong is not one of them.

Instead, Rule 161 tells you  to "use your mirrors frequently so that you always know what is behind and to each side of you".

TooManyPoints

A question if you may, what do you mean when you say "a "catch all" charge was raised as a result of that allegation.

I mean something like Careless Driving or “not in proper control”.

Success with a prosecution for either of those two offences requires a NIP to have been served within 14 days and the debate was whether one which mentioned only an allegation of mobile phone usage would be compliant to enable those other charges to succeed.

A specific mobile phone offence does not require a NIP but it is quite specific – they have to prove you were using the phone whilst driving. The other offences are much wider (hence my term “catch all”) and require no proof that the phone was actually being used. Careless driving, for example, is simply that which “…falls below what would be expected of a competent and careful driver.”. So the police might argue that what you did meets that definition.

Do let us know how it goes.

Okell

Gerrard00004 said:

I tried to engage with the Constabulary/PC because it only just happened and didn't want it to continue through the whole legal process,...

But what did you think you were going to achieve?  How were you going to prevent it from "continuing"?

Gerrard00004 said:

Okell said:

Ectophile said:

Okell said:

Gerrard00004 said:

... The phone fell on top of the dashboard, I picked it up and tossed it onto the passenger seat...

If this were to get to court I think you are likely to be asked why you felt it necessary to move the phone at all - whether it fell on the floor, the dashboard or somewhere else.  Why couldn't you have left it where it was until you'd stopped driving?

If it's fallen out of a phone holder and onto the dashboard, then the next time you go around a corner, it's likely to slide off and fall onto the floor.  Possibly into the driver's footwell, where it could present a hazard.

Grabbing it off the dashboard and throwing it onto the passenger seat seems like a sensible thing to do.

Yes - but I wanted to hear what the OP's answer was rather than to suggest a possible justification to him.

Mildly_Miffed said:

Ectophile said:

Grabbing it off the dashboard and throwing it onto the passenger seat seems like a sensible thing to do.

Perhaps not while there's a marked police van next to you, though...

Quite.  The OP obviously doesn't check his mirrors enough

... I was not using the device so I felt no need to check my mirrors as I was not doing anything wrong.

Sorry but everytime you post you seem to be digging yourself into a deeper hole(!).  As has already been pointed out you should be using your mirrors continually so that you always know what is behind you (eg a police car).  You shouldn't only use your mirrors when you are doing something wrong.

If it gets to court for don't say you never feel any need to check your mirrors unless you are doing something wrong

Gerrard00004

I appreciate you taking the time to respond to my post but at the moment I am not in court. But to address the points you have raised.

As I mentioned, and to which you have quoted I wasn't (my opinion) doing anything wrong. Hence, I wasn't overly concerned about checking my mirrors. My eyes were on the road, I was not increasing my speed, I was not about to break. I wasn't changing lanes, until I did so, which was my nearside mirror. I was driving a van with a bulkhead so the Police van may have been behind me for a while before it over took me.

Anyhow. I have now been charged (SJPN) so any advice in relation to the actual charge any paperwork would be grateful. 👍

Gerrard00004

TooManyPoints said:

A question if you may, what do you mean when you say "a "catch all" charge was raised as a result of that allegation.

I mean something like Careless Driving or “not in proper control”.

Success with a prosecution for either of those two offences requires a NIP to have been served within 14 days and the debate was whether one which mentioned only an allegation of mobile phone usage would be compliant to enable those other charges to succeed.

A specific mobile phone offence does not require a NIP but it is quite specific – they have to prove you were using the phone whilst driving. The other offences are much wider (hence my term “catch all”) and require no proof that the phone was actually being used. Careless driving, for example, is simply that which “…falls below what would be expected of a competent and careful driver.”. So the police might argue that what you did meets that definition.

Do let us know how it goes.

Thank you for you post.

So an update. I returned home (from a period of working away), to a SJPN.

It was raised within the 6 month period and the charge sheet states:

'Use a handheld mobile phone / device while driving a motor vehicle on a road - endorsable offence'.

The deadline for my plea is this Thursday - 24/04/25.

I have redacted and scanned the relevant documents, and additionally documented all the issues I have with the documentation. Before I bore everyone with that, I have a couple of questions.

Statement of Facts - The Offence wording states the wrong date and is contradicts both witness statements. What is my responsibility here? can I get the SJPN voided or if it has to be amended, does this reset the charge date - taking it out of the 6 month period?

Witness statements - one of the PC's witness statement is raised in line with, quoting Criminal Procedure Rules, r27.2. My understanding is that this refers to prosecution of a defendant who has been acquitted of an offence and is is in reference to there being potential witness intimidation, etc. Is this correct and if so does this mean the Charge brought against me is on the wrong basis?

Additionally, is it worth raising all this on a separate thread? I am just concerned it may be over looked.

Thanks

LightFlare

If you are adamant that you weren’t using an electronic device, then surely your defence is exactly that.

You go to court and give your evidence, they give theirs and whoever decides on who they believe

Mildly_Miffed

Gerrard00004 said:

As I mentioned, and to which you have quoted I wasn't (my opinion) doing anything wrong. Hence, I wasn't overly concerned about checking my mirrors. My eyes were on the road, I was not increasing my speed, I was not about to break. I wasn't changing lanes, until I did so, which was my nearside mirror. I was driving a van with a bulkhead so the Police van may have been behind me for a while before it over took me.

You're completely missing the point...

Let's make it easy:
When do you need to use your mirrors to be aware of other traffic around you?
Your answer: When you're about to make a manoeuvre.
Everybody else's answer + Highway Code: All of the time that you're driving.

If you have a permanent picture in your head of the traffic around you, you only need quick mirror glances to confirm it and and add/remove detail.
If you don't, then when you realise you need to look, you have to build the whole picture afresh. It takes longer and more focus to do so.

Now let's say something happens ahead of you... When you should just be taking a quick glance to confirm what you already know, to evaluate your options to avoid that situation, then instead you're having to take your attention away from the situation.

The fact you're in a van with a bulkhead simply means you don't have the interior mirror available, so can only use the two door mirrors to build that picture in your head. If you aren't sure if another vehicle's close behind you, adjust your road position slightly so that you can see. If you don't understand how only having door mirrors can still give you that full picture, then driving a van is probably not for you.

The fact you're in a van with a bulkhead also means that when the occupants of this marked police van saw you manhandling your phone (which you don't deny), then they really should have been BLINDINGLY OBVIOUS to you, because they weren't just in your mirrors, they were in your clear view to the side. But you were just staring straight ahead out of the windscreen with whatever remaining portion of your attention was still on your driving, and hadn't even noticed their existence as they approached, pulled alongside, started to pull ahead... This would have been blindingly obvious to them, hence the assumption that you had been using the phone they saw in your hand. An assumption that is accurate far more often than it is not.

You say it was not accurate this time.

It clearly makes a difference to the substance of the charge you state.

Your defence is "I wasn't using it. It fell from the cradle onto the dash, and I was moving it to the passenger seat". As defences go, it's slightly better than "the dog ate my homework, miss."

Most importantly, I suggest that the difference is irrelevant when it comes to the actual road safety situation.

You were clearly not paying proper attention to driving, and got caught red-handed doing so... with a phone in that hand. You're lucky the outcome was a stop, not a collision.

Do NOT waste everybody's time by playing picky pedant with fine paperwork detail of dotting i and crossing t and querying punctuation. You were seen at the time. You agreed you were driving the vehicle at the time when you returned the s172. Nobody denies that. It will not impress the court, it will not invalidate the charges, and it will simply make you look like you're trying to escape the consequences of your actions. It will also give them even more reason to cast doubt on your actual defence, because it will simply make you look even more like somebody who can't just admit when they got caught.

There is a huge lesson for you to learn here - but right now you seem to be denying the requirement for any lesson at all.

TooManyPoints

…can I get the SJPN voided or if it has to be amended, does this reset the charge date - taking it out of the 6 month period?

No and no.

Is this correct and if so does this mean the Charge brought against me is on the wrong basis?

No it’s not correct and I’ve no idea why it has been quoted. But it does not essentially give you any advantage or leverage.

Errors such as those you mention are readily corrected in court (if they are raised and any correction is necessary). For them to have any influence of the outcome they must either put the defendant at a material disadvantage or provide an unfair advantage to the police/prosecution. Neither of the issues you mention seems to do that. By all means base your defence on those typographical/clerical errors but I believe you may face disappointment.

In any case, from what you say, you have no need to rely on any of that. The issue in your case is simple: the police allege you were using your phone whilst driving; you contend that you were not. 

You must respond to the SJPN within the time allowed or your case will be heard without any input from you. If you plead guilty the Single Justice will impose a sentence and you will be notified of the outcome by post. If you plead Not Guilty you will be asked to attend court for a “case management” hearing. This is to establish what the issues are  and to set a trial date. If you disagree with the officers’ statements you will have to ask for them to attend so that you can cross-examine them. If you don' heir statements will be accepted by the court as they stand.

At your trial, the police will present their evidence and you will present yours. The court will decide whether they are sure, beyond reasonable doubt, that you committed the offence. If they are not, you must be acquitted.

Okell

TooManyPoints said:

... If you plead Not Guilty you will be asked to attend court for a “case management” hearing. This is to establish what the issues are  and to set a trial date. If you disagree with the officers’ statements you will have to ask for them to attend so that you can cross-examine them. If you don' heir statements will be accepted by the court as they stand...

For the OP's benefit, if he does not accept the accuracy of the police officers' statement, does he need to require their attendance at the case management meeting, or only at the substantive trial?

TooManyPoints said:

…can I get the SJPN voided or if it has to be amended, does this reset the charge date - taking it out of the 6 month period?

No and no.

Is this correct and if so does this mean the Charge brought against me is on the wrong basis?

No it’s not correct and I’ve no idea why it has been quoted. But it does not essentially give you any advantage or leverage.

Errors such as those you mention are readily corrected in court (if they are raised and any correction is necessary). For them to have any influence of the outcome they must either put the defendant at a material disadvantage or provide an unfair advantage to the police/prosecution. Neither of the issues you mention seems to do that. By all means base your defence on those typographical/clerical errors but I believe you may face disappointment.

In any case, from what you say, you have no need to rely on any of that. The issue in your case is simple: the police allege you were using your phone whilst driving; you contend that you were not...

Again for the OP's benefit, I understand your point that the discrepancies about the date of the offence and the Criminal Procedure Rule are insignificant (and can be corrected by the court) and that he should simply base his defence on that he was not using his 'phone, but would raising those two discrepancies necessarily be disadvantageous to his case?

It seems to me that if I were charged with an offence like this I would want to draw attention to every potential hole in the prosecution evidence against me, whether it could be easily corrected by the court or not.  It might be grasping at straws but I don't see how it could detract from the OP's substantive defence as Mildly_Miffed seems to suggest it would.

I'd hate to get convicted and then think I hadn't raised everything in my defence that I could.

I'd also hate to think that it could happen that a court would in effect be prejudiced against my substantive defence simply because I'd raised two issues which I had mistakenly believed to be significant and which the court could correct