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

TheSpectator

Gerrard00004 said:

Wonka_2 said:

Gerrard00004 said:

TheSpectator said:

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

I am not digging myself into a hole, I am asking genuine questions in order to ascertain how to proceed. Shall I post the paperwork? 

Given your changing story and your search for every loophole/issue it’s probably time to either take legal counsel or accept what’s offered (and without re-reading it all what is the current offer on the table or are you just deciding whether to return the S172 ?)

The answer to the above probably depends on how deep your pockets are vs your desire to ‘win’ and how many points you currently have (which you’ve not answered) 

If you’re determined to go on with your defence then make sure you’re absolutely clear on your actions on the day - some vans have 360degree cameras more than capable of picking up the actions of a driver and their phone in the next lane 

I will post the paperwork and see what the general consensus is.

Have you not worked that out already?

born_again

Gerrard00004 said:

TheSpectator said:

Honestly OP, you are digging yourself into a hole. The court are going to believe the word of 2 police officers over you. Rightly or wrongly it's the way it is.

Plead guilty and get the minimum punishment you can. Pleading not guilty and being found guilty will lead to a harsher penalty.

I am not digging myself into a hole, I am asking genuine questions in order to ascertain how to proceed. Shall I post the paperwork? 

I would suggest that if you feel you have a case, you engage the guy that the rich & famous use to get them off.
Of course you will be spending many thousands to get off.
Is that worth it?

Gerrard00004

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TooManyPoints

Yes, the phone was in my hand, so yes red handed but is that an offence under the current law?

I have explained, the offence is “using” a hand-held device. The legislation provides examples of activities which would normally be considered “using”. But the list is not exhaustive. So if you base your defence on the fact that you were not using the phone, it would be for the police to provide evidence that you were and for the court to decide if that evidence is sufficient.

To give you a bit of background, the legislation was amended in 2022 following the case of DPP (Director of Public Prosecutions) vs Ramsey Barreto in 2019. Very briefly, Mr Barreto was caught driving whilst using his phone to film the aftermath of an accident on the opposite carriageway. At the time, the law said that the phone had to be used for “interactive communication”.

Despite this he was convicted in the Magistrates’ Court but successfully appealed to the Crown Court. However, so important was this issue that the DPP took the unusual step of raising a “case stated” in the High Court. That court again ruled in Mr Barreto’s favour so the law had to be changed if motorists using a phone for photography, checking the time and other non-interactive purposes were to be convicted.

By returning the S172 I accepted that I was driving the vehicle at the time, you are correct. But does make me guilty of using a handheld mobile phone/device while driving a motor vehicle on a road?? Yes or No?

No. Stating you were the driver by way of a s172 response confirms only that – that you were the driver at the time and place stated.

I am trying to understand the terminology of "using", by picking up a phone and moving it, am I using it?

See above. “Using” is not defined. Only examples are provided.

“Does the fact that the Charge was raised with an incorrect Statement of Fact's, by the Chief Constable, fill you with confidence in the system?”

I’ve already given you my view on typographical and clerical errors. By all means mention them in court but do not expect them to have any material influence on the outcome.

The issue here is whether the police can convince the court that you were using the phone. We have not seen the officers’ statements so cannot comment on what they say they witnessed. But even if we did, I don’t think anyone here could reliably forecast the outcome because it depends on a number of factors which will only come out in court. I certainly would make no attempt to do so.

You should be aware of the cost of failure. If you plead guilty you will face a fine of a week’s net income, but reduced by a third for your guilty plea. You will also pay a “victim surcharge” of 40% of that fine and prosecution costs of around £90. If you are convicted following a trial you will, of course get no discount for a guilty plea. But you will also be ordered to pay prosecution costs of around £650. So, if you have an income of £500pw, a guilty plea will see you relieved of about £550. If you are found guilty following a trial, it will set you back around £1,350. Six points will be imposed in either eventuality.

Of course if you are acquitted it will cost you nothing.

Gerrard00004

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TheSpectator

Gerrard00004 said:

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Not sure what that adds to what we already have been told?

Ultimately you plead guilty and take the lesser punishment or gamble on not guilty and hope to convince a court that 2 police officers did not see what they claim to have seen.

Mildly_Miffed

Your documents 5 & 6...

Two police witnesses state clearly that, while overtaking your van, they saw you looking down at your lap where your phone was in your right hand, before you realised they were there and returned your attention to the road.

You admit that you were unaware of their presence.

You agree that the phone's path between dashboard and passenger seat involved your lap.
I presume you're not going to deny it was in your right hand for this path?

Other than "but I wasn't using it, honest", what compelling evidence do you plan to introduce in your defence?

Gerrard00004

TooManyPoints said:

Yes, the phone was in my hand, so yes red handed but is that an offence under the current law?

I have explained, the offence is “using” a hand-held device. The legislation provides examples of activities which would normally be considered “using”. But the list is not exhaustive. So if you base your defence on the fact that you were not using the phone, it would be for the police to provide evidence that you were and for the court to decide if that evidence is sufficient.

To give you a bit of background, the legislation was amended in 2022 following the case of DPP (Director of Public Prosecutions) vs Ramsey Barreto in 2019. Very briefly, Mr Barreto was caught driving whilst using his phone to film the aftermath of an accident on the opposite carriageway. At the time, the law said that the phone had to be used for “interactive communication”.

Despite this he was convicted in the Magistrates’ Court but successfully appealed to the Crown Court. However, so important was this issue that the DPP took the unusual step of raising a “case stated” in the High Court. That court again ruled in Mr Barreto’s favour so the law had to be changed if motorists using a phone for photography, checking the time and other non-interactive purposes were to be convicted.

By returning the S172 I accepted that I was driving the vehicle at the time, you are correct. But does make me guilty of using a handheld mobile phone/device while driving a motor vehicle on a road?? Yes or No?

No. Stating you were the driver by way of a s172 response confirms only that – that you were the driver at the time and place stated.

I am trying to understand the terminology of "using", by picking up a phone and moving it, am I using it?

See above. “Using” is not defined. Only examples are provided.

“Does the fact that the Charge was raised with an incorrect Statement of Fact's, by the Chief Constable, fill you with confidence in the system?”

I’ve already given you my view on typographical and clerical errors. By all means mention them in court but do not expect them to have any material influence on the outcome.

The issue here is whether the police can convince the court that you were using the phone. We have not seen the officers’ statements so cannot comment on what they say they witnessed. But even if we did, I don’t think anyone here could reliably forecast the outcome because it depends on a number of factors which will only come out in court. I certainly would make no attempt to do so.

You should be aware of the cost of failure. If you plead guilty you will face a fine of a week’s net income, but reduced by a third for your guilty plea. You will also pay a “victim surcharge” of 40% of that fine and prosecution costs of around £90. If you are convicted following a trial you will, of course get no discount for a guilty plea. But you will also be ordered to pay prosecution costs of around £650. So, if you have an income of £500pw, a guilty plea will see you relieved of about £550. If you are found guilty following a trial, it will set you back around £1,350. Six points will be imposed in either eventuality.

Of course if you are acquitted it will cost you nothing.

Thank you for addressing my concerns. I appreciate that in responding to other posts my points may have gone off on an a tagent.

I accept I had the phone in my hand, I was trying to understand if I was guilty of the charge brought against me. As the separate versions of the legislation You (the updated version) and I have referred to, it is not conclusive. it is still ambiguous. 
I have hopefully attached the paperwork correctly for your perusal. The witness statements are complete BS, the phone was never in my right hand. Why would the Driver, whilst over taking in the fast lane, in conditions he described negatively, look over to me. To observe - looking past his uniformed colleague - that I was looking down at my lap, and further more see that I had a mobile phone in my right hand and using it. We were both driving vans, it is not as if he was looking down, in to a car. Why are the Police statements made a month/month plus respectively after the alledged offence.
I feel so strongly about this because I know what happened, however, it looks like I will be forced to back down on the basis of them being police officers and the penalties not worth taking the risk to challenge. 

ontheroad1970

You will have to do a lot of justifying why the phone would be in your right hand if you were merely going to move it to the passenger seat - unless your van is left hand drive.  I am right handed, but if this were to happen to me I would use my left hand to do so as to use the right hand would risk the phone not reaching the passenger seat, catching my left knee for example.  It wouldn't be a natural movement to use your right hand unless you were actually using it.  

Seriously.  Either get a lawyer involved (and be prepared to empty your pockets) or just plead guilty

paul_c123

It boils down to the statements of 2 police officers, vs your assertion they are wrong. 

The police have no incentive to make a false statement - they passed hundreds of other cars and vans, and would have taken a look at all of them as they passed. Part of their job is attending court in addition to patrols, etc, its just another thing they do in their job. You have a big incentive to say you weren't using your phone.

Personally I'd cut your losses and hold your hands up to this one, even if it means it puts you into totting up disqualification territory.

Going forwards, what kind of mobile phone cradle do you have? I've found some are shockingly poor and either don't hold the phone properly, or have a sucker pad which will fall off the windscreen at its own whim. The best kind seem to be those that have a good grip on a vent, and little arms which come round the side and close up when the phone is put in them. Better yet, Apple Carplay.