In court on Wednesday, this should be fun!

[10 Pence Short]

streaky said:

10 Pence Short][ ... said:

As far as I'm aware, the actual legislation is worded as follows:

Legislation said:

"Mobile telephones
110. - (1) No person shall drive a motor vehicle on a road if he is using -
(a) a hand-held mobile telephone; or
(b) a hand-held device of a kind specified in paragraph (4)."

Notice that the legislation says 'using', rather than 'making a call'. Using could be simply holding it and switching it on/off.

Indeed, but the legislation also defines a mobile telephone as:

Legislation said:

A hand-held device is something that "is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function."

I think you misread that point. All you have quoted is the definition of the device, not the context in which it is used.

[streaky]

10 Pence Short said:

streaky said:

10 Pence Short][ ... said:

As far as I'm aware, the actual legislation is worded as follows:

Legislation said:

"Mobile telephones
110. - (1) No person shall drive a motor vehicle on a road if he is using -
(a) a hand-held mobile telephone; or
(b) a hand-held device of a kind specified in paragraph (4)."

Notice that the legislation says 'using', rather than 'making a call'. Using could be simply holding it and switching it on/off.

Indeed, but the legislation also defines a mobile telephone as:

Legislation said:

A hand-held device is something that "is or must be held at some point during the course of making or receiving a call or performing any other interactive communication function."

I think you misread that point. All you have quoted is the definition of the device, not the context in which it is used.

Thank you, but I didn't misread the point. I merely pointed out that "use" can be construed in the sense in which its prohibition is defined by reference to the definition of the device. If you had read further (and not truncated my post) you would have seen that I said the court "could" accept the common usage (sorry!) of 'using a telephone' as making (or receiving) a call. I also said that the court might not - Streaky

[Uberloin]

I think you will be found not guilty for the following reasons:

You having an installed telephone system does not necessarily mean you weren't using a mobile.

Handing in personal phone call details or having them retrieved is irrelevant - it is a possible to use a mobile phone not belonging to you - like your passenger's - a friend called and asked to speak to you and you accepted, is a possibility.

These two possibilities do not prove you guilty.

If his evidence is "I saw this motorist remove a mobile phone from his head as I approached". Then it is his word against yours. This results in a stalemate battle: Yes you were; no I wasn't gain-say.

If he must 'prove' (beyond doubt)that you are guilty, I don't understand why the matter is going to court. This matter cannot be 'proved' one way or the other without significant doubt. On the contrary, if there was cast iron evidence - ie physical 'proof'(like police footage), the matter would not go to court.

I think the case will probably be dropped on this basis. Speculate is all we can do. I have assumed you aren't lying, hence I offer the best of fortune.

Good luck dealing with a hallucinating policeman; pity he didn't see the 3 people on handhelds I did today...seeing is believing - or is it?

Edited by Uberloin on Sunday 20th April 22:24

Edited by Uberloin on Sunday 20th April 22:25

Edited by Uberloin on Sunday 20th April 22:37

[ukwill]

gozomark said:

vonhosen said:

ukwill said:

Shirley, it would be as simple as the phone operator providing the call records for the 2 occupants in the car at the time of the alleged incident?

Or am I missing something?

I've got three mobiles myself, which one do you want the records for today ?

and we only have your word for it that you don't have a 4th one...

I think the magistrates would have thrown it out if the prosecution went down that avenue. There were 2 people in the car, how many mobiles would you think could reasonably be in the car? I know if I were a the brief I'd make a big point of how ridiculous that sounded.

[ukwill]

vonhosen said:

Jasandjules said:

vonhosen said:

I've got three mobiles myself, which one do you want the records for today ?

All of them of course. That way we can eliminate them as not receiving a call at the requisite time, thus negating the offence.

Yeah but if someone turns up at court having requested the details of just one & produces those as evidence that they weren't on the phone, that doesn't mean they weren't on 'a' phone.

So as the accused, you could happily say in court that you and your passenger would be happy for the Police to request access to both your phone records for the time/date relevant to the "offence".

I think the magistrates would look on this favourably - it would show that you were happy to co-operate and didn't have anything to hide. You could also easily prove how many live mobile phone contracts you had at that time, thus negating the implication that you could be on "another" phone. That kind of insinuation from the prosecution would sound a tad desperate to my mind.

[herewego]

ukwill said:

vonhosen said:

Jasandjules said:

vonhosen said:

I've got three mobiles myself, which one do you want the records for today ?

All of them of course. That way we can eliminate them as not receiving a call at the requisite time, thus negating the offence.

Yeah but if someone turns up at court having requested the details of just one & produces those as evidence that they weren't on the phone, that doesn't mean they weren't on 'a' phone.

So as the accused, you could happily say in court that you and your passenger would be happy for the Police to request access to both your phone records for the time/date relevant to the "offence".

I think the magistrates would look on this favourably - it would show that you were happy to co-operate and didn't have anything to hide. You could also easily prove how many live mobile phone contracts you had at that time, thus negating the implication that you could be on "another" phone. That kind of insinuation from the prosecution would sound a tad desperate to my mind.

No contracts with pay as you go.

[andy_s]

If visibility was so bad and the speed so quick, how did they get your registration number?

[ukwill]

herewego said:

ukwill said:

vonhosen said:

Jasandjules said:

vonhosen said:

I've got three mobiles myself, which one do you want the records for today ?

All of them of course. That way we can eliminate them as not receiving a call at the requisite time, thus negating the offence.

Yeah but if someone turns up at court having requested the details of just one & produces those as evidence that they weren't on the phone, that doesn't mean they weren't on 'a' phone.

So as the accused, you could happily say in court that you and your passenger would be happy for the Police to request access to both your phone records for the time/date relevant to the "offence".

I think the magistrates would look on this favourably - it would show that you were happy to co-operate and didn't have anything to hide. You could also easily prove how many live mobile phone contracts you had at that time, thus negating the implication that you could be on "another" phone. That kind of insinuation from the prosecution would sound a tad desperate to my mind.

No contracts with pay as you go.

Nope, but that doesn't prevent the Network Operator from linking your phone ID to you. Your phone usage history is still obtainable.

[Colonial]

It's getting ridiculous

Let me give you an example. In NSW, the law states you cannot be "in control of a motor vehicle" whilst using a phone.

As a result of this, a friend has been charged with using a phone whilst driving, which is 3 points.

Now, the thing is, he was pulled over to the side of the road, in an area which there were no parking restrictions, bit his engine was still running. Therefore he was judged to be in control as per the legislation

He appealed and lost.

[10 Pence Short]

streaky said:

Thank you, but I didn't misread the point. I merely pointed out that "use" can be construed in the sense in which its prohibition is defined by reference to the definition of the device. If you had read further (and not truncated my post) you would have seen that I said the court "could" accept the common usage (sorry!) of 'using a telephone' as making (or receiving) a call. I also said that the court might not - Streaky

I'm still not sure quite what your point is?

For the offence to occur a person only has to use a device as described in the act (of which you quoted), whilst driving. You do not need to be in the process of communicating with someone with it.

The part of the Act you quoted was just the definition of a device. Hence I'm not too sure what your point was?

Either way, the Mags don't need proof from phone records to establish guilt or otherwise, although it would make a case much more compelling if they were to!

[R.E.J.S]

herewego said:

ukwill said:

vonhosen said:

Jasandjules said:

vonhosen said:

I've got three mobiles myself, which one do you want the records for today ?

All of them of course. That way we can eliminate them as not receiving a call at the requisite time, thus negating the offence.

Yeah but if someone turns up at court having requested the details of just one & produces those as evidence that they weren't on the phone, that doesn't mean they weren't on 'a' phone.

So as the accused, you could happily say in court that you and your passenger would be happy for the Police to request access to both your phone records for the time/date relevant to the "offence".

I think the magistrates would look on this favourably - it would show that you were happy to co-operate and didn't have anything to hide. You could also easily prove how many live mobile phone contracts you had at that time, thus negating the implication that you could be on "another" phone. That kind of insinuation from the prosecution would sound a tad desperate to my mind.

No contracts with pay as you go.

One big error the officer has made is, he made no attempt to look at my call register and he did not check what handset were in the car at the time.

Edited by R.E.J.S on Monday 21st April 11:16

[JustinP1]

10 Pence Short said:

...Either way, the Mags don't need proof from phone records to establish guilt or otherwise, although it would make a case much more compelling if they were to!

Agreed. They will either believe the PC and think the OP is lying, or they won't in which case he will be found NG.

If it were me cross examining, I would certainly bring up the point that when questioned I offered my phone to the PC for him to examine for his to confirm his own thoughts that I might have been using it.

I would also ask why he decided not to - why when he would be offered pretty much cast iron evidence to convict, but for some reason turned it down...?

I might even bring up the fact that the 'sarge' was sat next to him - "It would be good to impress the him wouldn't it?" "Is that why you didn't check for this damning evidence at the roadside, as you thought you might be proved wrong in front of him?"

Show that he is inexperienced, trying to impress, a bit sloppy, and unsure of himself, then ask whether at a closing distance of 60mph he can tell the difference beyond reasonable doubt between the OP stratching his head and having a phone in his hand... Job done.

[Mg6b]

R.E.J.S said:

One big error the officer has made is, he made no attempt to look at my call register and he did not check what handset were in the car at the time.

Edited by R.E.J.S on Monday 21st April 11:16

Not a big error.
Short of searching you and the vehicle for evidence of such devices, a power for which he did not have at that point, the fact he did not know how many phone devices were in the car is irrelevant.

His evidence of seeing you using a phone is what is important.
Your evidence that you were not is equally as important.
The magistrates will have to make up their minds about the facts and then decide whether there is enough from the officer to substantiate convicting you of the offence.

I have 2 mobile phones. One of them might be surrendered if someone asks me to do so. The other might not!

[esselte]

Mg6b said:

Not a big error.
Short of searching you and the vehicle for evidence of such devices, a power for which he did not have at that point, !

Why couldn't he search his car? I know it may not be related but on the "Road Wars" type of programmes on TV virtually everytime the police stop a car they give it the once-over,just in case,y'know......why wouldn't they in this instance?

[R.E.J.S]

Mg6b said:

R.E.J.S said:

One big error the officer has made is, he made no attempt to look at my call register and he did not check what handset were in the car at the time.

Edited by R.E.J.S on Monday 21st April 11:16

Not a big error.
Short of searching you and the vehicle for evidence of such devices, a power for which he did not have at that point, the fact he did not know how many phone devices were in the car is irrelevant.

His evidence of seeing you using a phone is what is important.
Your evidence that you were not is equally as important.
The magistrates will have to make up their minds about the facts and then decide whether there is enough from the officer to substantiate convicting you of the offence.

I have 2 mobile phones. One of them might be surrendered if someone asks me to do so. The other might not!

He did have the power to search my car as i give him numerous opportunities to do so, but he refused every time i asked him to take a look. Your quite correct in that he could not just search my car just because he felt like it, but i was giving permission to do so. The magistrates have to consider their verdict based on evidence from both parties, the fact that when i was under caution and giving a statement he did not make a record of what devices were in the vehicle at the time could cause a few problems with the officers evidence because where is the Court going to start with obtaining my mobile phone records if they do not know exactly which handsets were present at the time (mine,my passengers etc..)

I have been totally transparent with my evidence, i offered to clear the matter up at the scene by showing the Officer's my mobile phone, my installed telephone system and i offered to let them search the car to prove that i was not on the phone. I also have a clean licence so 3 points and a £40 is know going to cause me to many problems so if i was guilty why would i go to all this trouble? The fact of the matter is i am innocent and hopefully the magistrates will see that i have nothing to hide and that the Police Officer has simply made a mistake.

Purely on principal i am prepared to appeal at Crown Court should i be convicted for this alleged offence.

Thank you all, for your continued support.

[p1esk]

Mg6b said:

R.E.J.S said:

One big error the officer has made is, he made no attempt to look at my call register and he did not check what handset were in the car at the time.

Edited by R.E.J.S on Monday 21st April 11:16

Not a big error.
Short of searching you and the vehicle for evidence of such devices, a power for which he did not have at that point, the fact he did not know how many phone devices were in the car is irrelevant.

His evidence of seeing you using a phone is what is important.
Your evidence that you were not is equally as important.
The magistrates will have to make up their minds about the facts and then decide whether there is enough from the officer to substantiate convicting you of the offence.

I have 2 mobile phones. One of them might be surrendered if someone asks me to do so. The other might not!

Von's even more tricky - he's got three. [Thinks: Why does anybody need three, or two, for that matter?]

Naturally, being a simple and straightforward sort of chap, I only have one.

Best wishes all,
Dave.

[The Count]

Hi R.E.J.S., i'm not a gambling man, but i'd wager a few quid on you achieving a favorable outcome. Good luck and please keep us posted.

[slow_poke]

Any news for us?

[parapaul]

Given the title of the OP "In court on Wednesday"... I should think probably not yet

[slow_poke]

parapaul said:

Given the title of the OP "In court on Wednesday"... I should think probably not yet

Well, shag. I seem to have lost a day. Must be lying around here somewhere......