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

user1977

Gerrard00004 said:

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.

The witness statements are complete BS

And maybe they are, but I'll assume the police officers will keep to their story in the witness box, so (as I said above) your only hope is to somehow create doubt by your (or more usefully, your counsel's) cross-examination of them.

Gerrard00004

Mildly_Miffed said:

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?

Read my original post mate. 

The phone fell from its craddle, it landed on the dashboard - no where near my lap. it landed slightly right (above the stereo) even if the craddle was on the right, I would not use my right hand to pick it up and throw it because I natural drive as manual as do most others with their right hand on the wheel and their left to activate the gears.
I picked it up and tossed it, and then out of my peripheral visions noticed someone over taking. 
It may well be that I don't have a case here, fine. However, it seems to me that you are more intent on calling me out as a liar and that is unfair. Explain to me how the Driver of a Van, over taking at speed is looking at me whilst doing so. At the same time, most likely partially obstructed by his colleague he has managed to see I was looking at my lap and then on further inspection was operating a mobile phone in my right hand? his line of vision does not allow for that, the whole thing is BS.
Why take a month to make a statement, ironically a day after I emailed the Passenger driver? why not stop me, or put put the blues on to warn me? I am being to accept that it is going to be hard to defend this but don't call me a liar.

Gerrard00004

ontheroad1970 said:

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

Exactly. I have raised the same point in my response to Mildred. 

The phone was never in my right hand. It is the police who have stated this.

paul_c123

The only hope would be if the judge picks up on the issue that the driver may not have had line-of-sight to see your lap. But then, we don't know what kind of van he was driving. I think yours is a VW Transporter though, from the witness statement? Different vans have different seating positions and height of seat/cab, for example a Transit or Renault Master is a larger, higher van than a Transporter.

But then the passenger policeman also saw it? How are you going to argue that one?

Gerrard00004

paul_c123 said:

The only hope would be if the judge picks up on the issue that the driver may not have had line-of-sight to see your lap. But then, we don't know what kind of van he was driving. I think yours is a VW Transporter though, from the witness statement? Different vans have different seating positions and height of seat/cab, for example a Transit or Renault Master is a larger, higher van than a Transporter.

But then the passenger policeman also saw it? How are you going to argue that one?

I personally believe the driver never witnessed anything, the passenger PC most likely witnessed me with my phone in hand, he is the PC who brought the charge. I would like to get a time stamp on his Witness statement, because it is almost as if the last part of his statement is covering the points I raised in my email to him. The Driver PC made his statement later (12 days) he states that as he was over taking me he slowed down to let me go past him, I was no longer on the phone and looking forward, however passenger driver states he turned his head back to get my registration and that I had seen him and slowed down and indicated into the slow lane. 
So how does the driver see I am looking forward and not on my phone if the passenger driver has turned his head to witness me slowing down and indicating into the slow lane?

Herzlos

Gerrard00004 said:
So how does the driver see I am looking forward and not on my phone if the passenger driver has turned his head to witness me slowing down and indicating into the slow lane?

According to their statement, you slowed down moments later and moved over. So I don't see any contradiction here.

The moving over part makes me assume the lane to your left was clear so they were potentially already aware that you may not have been paying attention. I don't think they'll be traffic police in a van, but they'll be used to seeing inattentive drivers all the time. I see a huge amount of drivers looking at their lap whilst driving.

Their assertion is that they observed you on a phone, confirmed it with each other and then when trying to get your registration details you'd discarded the phone, were slowing down and moving over.

I don't see how that fits with your story; where they happened to pass at the exact moment you were transferring the phone from dash to seat.

Given you claim you didn't even see them implies you weren't paynig enough attention which is probably what alerted them in the first place.

What would be interesting, but likely not relevant, is if they saw the phone itself or just the light from the phone and your innatentiveness.

Frankly, it sounds like you've been caught red handed, so I'd be inclined to just take the hit on it instead of wasting time and money trying to defend it, and pay more attention in future.

TooManyPoints

You (the updated version) and I have referred to, it is not conclusive. it is still ambiguous.

It is not ambiguous. It says that using a phone whilst driving is not permitted. It cannot possibly list all the activities that one might use a phone for. It lists the most common and he intention was to emphasise that, contrary to the earlier version, it is now no longer necessary to prove that the phone was being used for “interactive communication”.

Many laws are seemingly vague. The law on Carless Driving, for example, simple states that a driver is guilty if his driving falls “below the standard expected of a competent and careful driver.”  It doesn’t say (for example) that overtaking on a blind bend is careless, or that weaving in and out of lanes on a motorway is careless. If the case is argued, it is for a court to decide.

The officers’ statements are near enough as I expected. They both say they saw you using your phone. Your job will be to cast doubt on their testimony in court. Experienced barristers often have difficulty doing that. When you give your evidence you will be able to explain to the court what exactly you were doing with the phone.

Why take a month to make a statement,…

Because police officers only prepare formal statements when they know they might be necessary. There will always be a gap between the date of the allegation and the time it becomes clear the matter may go to court. It would not be at all surprising if the second officer prepared his statement when informed by the first you may be challenging the allegation.

What you are bordering on here is suggesting the officers have colluded and that one or both of them have committed perjury. You need to tread very carefully with that and my advice is don’t go there without proper legal advice.

It’s unfortunate but doing virtually anything with a phone whilst driving – even just picking it up – is very unwise. You immediately lay yourself open to allegations such as these.

Mildly_Miffed

Gerrard00004 said:

Mildly_Miffed said:

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?

Read my original post mate.

I have read and re-read all of your posts in the thread.

As ever, we get a drip-feed of information missing from the original post, as we tease things out.

I read your post at 8.21 this morning as agreeing that the phone was indeed in your lap when seen by the police. Maybe I misunderstood. If I did, I apologise, but I'm sure re-reading that post will show how I could have gained that impression.

The phone fell from its craddle, it landed on the dashboard - no where near my lap. it landed slightly right (above the stereo) even if the craddle was on the right, I would not use my right hand to pick it up and throw it because I natural drive as manual as do most others with their right hand on the wheel and their left to activate the gears.

Either hand is as available as the other, since you're not changing gears whilst sitting at a steady speed on a motorway, are you?

Or are you saying you hang on to the gear lever at all times while driving, even when you aren't changing gear?

I picked it up and tossed it, and then out of my peripheral visions noticed someone over taking.

A marked police van, which you still seem to be denying that you could possibly have been aware of much earlier.

It may well be that I don't have a case here, fine.

The court have the witness statements of two police officers that agree with each other, both stating that you were driving along in a world of your own while manhandling a phone.

Your statements here demonstrate that your awareness of your surroundings was indeed badly lacking, even if you don't seem to accept.
You agree that you were manhandling a phone at the time. There is a little fine detail difference, but that is a basic agreed fact, right?

However, it seems to me that you are more intent on calling me out as a liar and that is unfair.

I have done no such thing. I have merely been trying to understand and clarify the story you are giving us.

Explain to me how the Driver of a Van, over taking at speed is looking at me whilst doing so. At the same time, most likely partially obstructed by his colleague he has managed to see I was looking at my lap and then on further inspection was operating a mobile phone in my right hand? his line of vision does not allow for that, the whole thing is BS.
Why take a month to make a statement, ironically a day after I emailed the Passenger driver? why not stop me, or put put the blues on to warn me?

As you have been told by several posters, repeatedly... None of that is in the slightest bit relevant, nor is it particularly useful to your defence to even go near it.

We're talking about a ticket for using a phone while driving. It is being dealt with by paperwork alone. There is no great reveal with dramatic reconstructions using both vehicles. Your case is just another one of endless dozens of very similar cases dealt with by an over-stretched court.

Your sole line of defence here is "but I wasn't using it at the time". The court have heard that one dozens of times. And, yes, sometimes schoolchildren do indeed have completed homework eaten by their pet dog.

Now think about this: You're getting very offended because you think I'm calling you a liar - which I'd like to repeat I haven't done - yet you're explicitly claiming that the sworn witness statements of two police officers are fundamentally inaccurate. Two police officers who didn't need to do ANYTHING AT ALL except just keep driving when they pulled up alongside you, yet somehow formed an impression that you were doing something which you agree you were indeed basically doing, with the only difference being a little bit of detail which you are saying they couldn't possibly have seen anyway...

If it comes to deciding whose fine detail to believe, do you think the court are going to be more inclined to go with the two trained and experienced observers, or the man apparently so engrossed in "moving" his phone from A to B that he didn't see a marked police van alongside him?

I am being to accept that it is going to be hard to defend this

Good. Because you need to use that acceptance to decide what you want to do.
Accept it - you've already passed the £200 FPN point, so the earlier you plead guilty the cheaper.
Fight this - do you think you can win? Because a loss will be more expensive still than just accepting it.

Then put your phone in your pocket where it can't cause you more problems, and pay a bit more attention to what's going on around you.

paul_c123

Gerrard00004 said:

Why take a month to make a statement, ironically a day after I emailed the Passenger driver? why not stop me, or put put the blues on to warn me? I am being to accept that it is going to be hard to defend this but don't call me a liar.

I believe they make notes in a notebook, which are kept and sometimes referred to in court if they are cross-examined as a witness. The statement in your evidence pack, a month later, will have been made referring back to the notebook.

In their statement, it explains this particular officer wasn't trained for motorway stops (and even if he was, might have deemed it unnecessarily and not worth the risk). They recorded the date, time, vehicle and location so they've got everything needed anyway.

paul_c123

You could ask the counter-question, why would the police invent something for the sake of it if it didn't happen? What's their motivation or incentive to do so?