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

Okell

Gerrard00004 said:

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. 👍

My advice remains what it was before.

In court don't mention anything about not being overly concerned about checking your mirrors because your eyes were on the road ahead, you were not increasing your speed, you were "not about to break" [sic], and you weren't changing lanes.

If you do mention any of that I think it's likely to crate a bad impression regarding your standard of driving - and that might be prejudicial to your case.

If you want other views you might want to post on FTLA ( Speeding and other criminal offences ) 

TooManyPoints

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?

No, only at the trial.

…but would raising those two discrepancies necessarily be disadvantageous to his case?

I didn’t suggest they would be disadvantageous. Only that they were unlikely to provide any advantage.

… but I don't see how it could detract from the OP's substantive defence

I see no reason why it should.

This is becoming far more complex than it really needs to be. The sole issue is whether or not the OP was using  a phone whilst driving. We haven't seen the officers' statements but doubtless they will say that is what they saw. The OP's job (if he pleads not guilty) will be to convince the court that they were mistaken.

His defence is that he was not using it, but it fell from its cradle and he picked it up and tossed it onto the passenger seat. This probably took about one second. One of the questions the Magistrates might ask themselves when considering their verdict is how great is the likelihood that this one second was the very second that a police van happened to be passing the OP in the outside lane?

That's something the OP might like to consider.

born_again

It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.

This means you must not use a device in your hand for any reason, whether online or offline.

For example, you must not text, make calls, take photos or videos, or browse the web.

The law still applies to you if you’re:

• stopped at traffic lights
• queuing in traffic
• supervising a learner driver
• driving a car that turns off the engine when you stop moving
• holding and using a device that’s offline or in flight mode

You must stay in full control of your vehicle at all times. The police can stop you if they think you’re not in control because you’re distracted and you can be prosecuted.

You can get 3 penalty points if you do not have a full view of the road and traffic ahead or proper control of the vehicle.

https://www.gov.uk/using-mobile-phones-when-driving-the-law

Police will argue that as you were picking up phone, then you are not in full control of vehicle.

user1977

born_again said:

Police will argue that as you were picking up phone, then you are not in full control of vehicle.

That might constitute a separate offence, but they can't spring that on the OP as an alternative to the original charge of using the device.

But as above, assuming the prosecution case is going to be based on the police officer(s) testimony that they saw the OP using the device, the only real prospect of a successful defence is going to be tearing apart their evidence in cross-examination. Fine if you're employing counsel who are used to doing that, but a different matter for a layperson defending themselves.

Okell

TooManyPoints said:

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?

No, only at the trial.

…but would raising those two discrepancies necessarily be disadvantageous to his case?

I didn’t suggest they would be disadvantageous. Only that they were unlikely to provide any advantage.

… but I don't see how it could detract from the OP's substantive defence

I see no reason why it should...

Sorry - I didn't make myself clear.  I wasn't implying that you had suggested they would be disadvantageous, I was more asking for your comments on the view expressed by Mildly_Miffed that:

"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."

If I were the OP and were representing myself I would hope that the court would not look more unfavourably on me if I raised as issues a couple of discrepancies in the charge and witness statements which were within the power of the court to simply correct

I'd like to think if I were a magistrate that I should not look less favourably on a lay-defendant questioning the accuracy or other incorrectness of the case against him even if it the court considered the highlighted inaccuracy or incorrectness to be legally insignificant

TooManyPoints

If I were the OP and were representing myself I would hope that the court would not look more unfavourably on me if I raised as issues a couple of discrepancies in the charge and witness statements which were within the power of the court to simply correct

I'd like to think if I were a magistrate that I should not look less favourably on a lay-defendant questioning the accuracy or other incorrectness of the case against him even if it the court considered the highlighted inaccuracy or incorrectness to be legally insignificant

Your hopes and thoughts would probably be satisfied.

Magistrates' courts allow unrepresented defendants a fair amount of slack. As well as that, the court's Legal Advisor (whose primary role is to advise the magistrates) has a duty to assist those defendants to understand and comply with court procedures and protocols (though cannot advise them on the merits of their case or how to conduct their defence).

Gerrard00004

Thank you all for the time to respond.

In regards to the questions I asked, it was merely to see if it had any weight - before I posted the rest of the documentation - I think it is clear that it wont give any weight to voiding the charge but there is no harm in raising this if I was to plead not guilty.

As mentioned I am charged with Regulation 110(1) of the Road Vehicles (Construction And Use) Regulations 1986, Section 41D of the Road Traffic Act 1988.

Taken from Legislation.gov.uk:

"6) For the purposes of this regulation—

(a)a mobile telephone or other device is to be treated as hand-held if it is, or must be, held at some point during the course of making or receiving a call or performing any other interactive communication function;"

and 

"(c)

“interactive communication function” includes the following:

(i)sending or receiving oral or written messages;

(ii)sending or receiving facsimile documents;

(iii)sending or receiving still or moving images; and

(iv)providing access to the internet;"

So, if - and at present I cannot find an updated version of this - I am to interpret the above correctly, my act of picking my phone up off the dash board and throwing it onto the passenger seat does not contravene the regulation and therefore no offence committed.

Does anyone disagree? or have more recent information to suggest I am wrong?

Thanks

Gerrard00004

born_again said:

It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.

This means you must not use a device in your hand for any reason, whether online or offline.

For example, you must not text, make calls, take photos or videos, or browse the web.

The law still applies to you if you’re:

• stopped at traffic lights
• queuing in traffic
• supervising a learner driver
• driving a car that turns off the engine when you stop moving
• holding and using a device that’s offline or in flight mode

You must stay in full control of your vehicle at all times. The police can stop you if they think you’re not in control because you’re distracted and you can be prosecuted.

You can get 3 penalty points if you do not have a full view of the road and traffic ahead or proper control of the vehicle.

https://www.gov.uk/using-mobile-phones-when-driving-the-law

Police will argue that as you were picking up phone, then you are not in full control of vehicle.

Well as one of the Witnesses was the driver of the Police van, I could argue that he did not have a full view of the road and traffic ahead or proper control of the vehicle.......thoughts?

Gerrard00004

TooManyPoints said:

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?

No, only at the trial.

…but would raising those two discrepancies necessarily be disadvantageous to his case?

I didn’t suggest they would be disadvantageous. Only that they were unlikely to provide any advantage.

… but I don't see how it could detract from the OP's substantive defence

I see no reason why it should.

This is becoming far more complex than it really needs to be. The sole issue is whether or not the OP was using  a phone whilst driving. We haven't seen the officers' statements but doubtless they will say that is what they saw. The OP's job (if he pleads not guilty) will be to convince the court that they were mistaken.

His defence is that he was not using it, but it fell from its cradle and he picked it up and tossed it onto the passenger seat. This probably took about one second. One of the questions the Magistrates might ask themselves when considering their verdict is how great is the likelihood that this one second was the very second that a police van happened to be passing the OP in the outside lane?

That's something the OP might like to consider.

Thanks for your input.

To throw even more of a coincidence into the works, that one second when the Police van was over taking me, both the two witnesses (Driver and Passenger) happened to be looking into my vehicle....and were able to see what was on my lap (van to van).

TooManyPoints

I am to interpret the above correctly, my act of picking my phone up off the dash board and throwing it onto the passenger seat does not contravene the regulation and therefore no offence committed.

The legislation was amended in 2022 and the list of example uses was expanded:

https://www.legislation.gov.uk/uksi/2022/81/regulation/3/made

You should note that the list is not exhaustive. It gives examples of what is considered to be “using” a phone. It is up to a court to decide if one is being used in the event of dispute. You should also note that, contrary to what is often said (in the pub and in places like this) the legislation mentions nothing about “holding” a phone being a requirement to see a conviction. It simply defines what a hand-held device is and says you must  not use one whilst driving. If you argue either (a) it was not a hand held device, (b) you were no driving or (c) you were not using it, the court will decide the issue.

Well as one of the Witnesses was the driver of the Police van, I could argue that he did not have a full view of the road and traffic ahead or proper control of the vehicle.......thoughts?

My thoughts are that unless you are considering launching a private prosecution against the officer for that offence it has nothing to do with you. You should concentrate on your defence against the allegation (which is the specific mobile phone offence, rather than “not being in proper control”).