Police error, complaint upheld, doing me anyway! Defend?!

[anonymous-user]

No, the legislation requires use of the phone. The OP is being very coy about whether he was using the phone. Holding the phone may give rise to the inference of using it.

The rule is:-

"110.— Mobile telephones

(1) No person shall drive a motor vehicle on a road if he is using–

(a) a hand-held mobile telephone ..."


(Road Vehicles (Construction and Use) Regulations 1986)

Edited by anonymous-user on Tuesday 10th September 07:40

[Landshark]

“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).
(2) No person shall cause or permit any other person to drive a motor vehicle on a road while that other person is using—
(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4).
(3) No person shall supervise a holder of a provisional licence if the person supervising is using—
(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4),
at a time when the provisional licence holder is driving a motor vehicle on a road.

(4) A device referred to in paragraphs (1)(b), (2)(b) and (3)(b) is a device, other than a two-way radio, which performs an interactive communication function by transmitting and receiving data.
(5) A person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
(b)he is acting in response to a genuine emergency; and
(c)it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).
(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;
(b)a person supervises the holder of a provisional licence if he does so pursuant to a condition imposed on that licence holder prescribed under section 97(3)(a) of the Road Traffic Act 1988 (grant of provisional licence);
(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;
(d)“two-way radio” means any wireless telegraphy apparatus which is designed or adapted—
(i)for the purpose of transmitting and receiving spoken messages; and
(ii)to operate on any frequency other than 880 MHz to 915 MHz, 925 MHz to 960 MHz, 1710 MHz to 1785 MHz, 1805 MHz to 1880 MHz, 1900 MHz to 1980 MHz or 2110 MHz to 2170 MHz; and
(e)“wireless telegraphy” has the same meaning as in section 19(1) of the Wireless Telegraphy Act 1949(2).”

[Landshark]

Damn it, beaten to it by BV!!!

[340600]

Breadvan72 said:

No, the legislation requires use of the phone. The OP is being very coy about whether he was using the phone. Holding the phone may give rise to the inference of using it.

The rule is:-

"110.— Mobile telephones

(1) No person shall drive a motor vehicle on a road if he is using–

(a) a hand-held mobile telephone ..."


(Road Vehicles (Construction and Use) Regulations 1986)

Edited by Breadvan72 on Tuesday 10th September 07:40

And if the phone is ringing, as the chap I quoted described, then he commits the offence.

The way I interpret the OP is that there was interaction with the phone, and he's now looking for a technicality to get out of it.

[Steffan]

It does seem odd that four pages into the subject and despite many specific questions the OP has still not confirmed whether he was using the phone. It would seem straw clutching is in evidence and the OP will not fare well in court. Relying on the technicality where the ethnicity is incorrectly recorded does not seem a material fact in this case.

[julian64]

Can I ask the assembled legal bods on this thread. Is it lawful for me to use a handheld two way walkie talkie between two cars?

[anonymous-user]

thegoose said:

Everyone seems to have missed the point. They don't care that I wasn't in the process of making or receiving a phone call.

I am amazed that everyone thinks it's OK for the police to decide for themselves whether they follow procedures or ignore them, and then go one further and deliberately make up false responses.

That wasn't the point at all. If it were, you'd have titled the topic differently. Read your topic title again.

You've come here for validation and the hope someone will give you the magic bullet to get out of you committing an offence.

If you've now decided (because you're not hearing what you want) that you only want to focus on the ethnicity box, then, yes, the officer should have asked you. The end.

[NoNeed]

340600 said:

That's the legislation. As soon as you pick the phone up while driving you commit the offence.

In your eyes maybe but the law states "using" but that seems to difficult for lazy coppers to investigate properly in order to make the right decision. It now seems to falls to those accused to prove innocence and it would appear that some on here don't approve of the OP using police and prosecution tactics of discrediting a witness. The law works both ways and if the officer at the scene took short cuts (as shown with the ethnicity question) and didn't do his job properly which in my eyes would mean showing some "use" of the phone backed up with a call log, then why should his evidence have any credibility.


And for the record I am happy for mobile phone use while driving to mean an instant 12 month ban, but I would want any officer making that accusation to be thorough enough to ensure that all the correct procedure were followed in order to make sure as best they can that the phone was in fact being used.

[Pommygranite]

thegoose said:

Sorry, I don't often visit this forum but I'd like some help if anyone's able to offer any please.

It's not that complicated of a situation but takes a while to explain I'm afraid. I'll try to be as concise as I can but please ask if you require any more details:

I was stopped on the M60 by an unmarked car (as it happens I'd recognised what it was just before being pulled) which had followed me along Liverpool Road and on to the motorway. I got in the back of the car, was advised I was being video recorded and the officer alleged I'd been using a mobile phone. There was some dialogue between us, she checked my licence & verified it, then wrote out a ticket and explained that I was likely to be offered an awareness course, fixed penalty or I could go to court. On the ticket she'd written that I'd said "I don't understand what's going on" (which had been part of our dialogue) and asked me to sign it as acknowledgement.

I later checked the ticket and she'd completed the Ethnicity section as: "Officer defined (6+1)" as 1 and "Self defined (16+1)" as W1. I was never asked my ethnicity so she clearly made it up (and got it wrong). I made a complaint via the GMP website, which was initially acknowledged but I had to chase up a week later, it was then looked into by an Inspector, the officer admitted it and has been reprimanded.

I requested the in-car recording, it was obtained and I went along to the police station. It turns out there was a fault with the car (for which it's now in their workshops) and it was only recording audio internally. The recording they have is of the rear of my car on the motorway hard shoulder (it was only started recording just before I got in the police car, despite it being normal procedure for it to be always recording whilst they're on patrol - apparently the officer's been told off for that too) with the audio of the officer and myself inside the police car, none of which is particularly exciting except it proves I wasn't asked my ethnicity. It's actually my suspicion that this officer and many others likely routinely complete this box on their forms without actually asking the alleged offender, but I understand that's just me speculating.

The official complaint response I got states "the officer had failed to ask you your ‘self defined’ ethnicity, furthermore the officer went on to record if for you without your consent" but goes on to state that the fact the officer didn't deal with things correctly is not a barrier to prosecution (I'd asked if it was).

So, my question is what's the likely chance of success defending myself in court against an officer's sworn statement when they're proven that they don't follow procedures correctly and make things up, or alternatively what's the chances of the CPS dropping the prosecution for the same reason (likely after an initial court hearing I'm told)?

So, if reading it right:

1. You got pulled over for touching/using your phone.
2. You havent denied this and therefore we can presume you did indeed get caught 'bang to rights'.
3. The officer presumed your ethnicity rather than ask you.
4. You are therefore trying to get off on a technicality that the form was completed incorrectly.


OP - IS THIS CORRECT?

[Dog Star]

NoNeed said:

It doesn't matter if the OP was on the phone as the question asked was basically could the officers testimony stand up in court now it has been shown to be false.

If the police officer lies then I think that to base any conviction on anything else they have to say on that case is very dodgy.

I've had experience of exactly this happening to me.

In a nutshell - 1986. I got arrested for fighting. When this went to court the two officers were not allowed to hear each other testify, and upon cross-examination it was quite obvious that their stories had been superficially corroborated, but fell apart once detailed questions were asked - they'd even held their notebooks up and stated that the notes had been written at the time of the offence. O rly? The questions weren't even about the offence, just the location, where they were when it happened, which way did they drive to the station, did they stop en route. Their answers did not match on any of the above. My solicitor didn't even get as far as asking about any fighting or the actual alleged offence, the magistrates held their hands up and stated that they refused to continue as they could not possibly trust the police officer's testimony (I can't remember the exact terminology). They threw it out.

I do remember the prosecution/CPS bod going bonkers - he was shouting "but an offence has been committed! An offence has been committed!". Indeed one had.

So back to the OP - my personal view is that even if he was on the phone, smoking a spliff and drinking from a bottle of scotch, the officers statement cannot and should not be trusted. Rules apply to both sides, no?

[Zeeky]

OP's point is that the PO's evidence on the alleged phone use is not credible or is otherwise unreliable because of her failure to ask him his for his ethnicity then signing an important document implying she had.

That reads as a long shot and AGT''s experienced opinion supports that.

WeirdNeville said:

...

It was even easy to simply forget (shock horror) and then have to fill it in later when tidying up the days paperwork...

How could you fill in the correct box without asking?

Edited by Zeeky on Tuesday 10th September 08:28

[agtlaw]

julian64 said:

Can I ask the assembled legal bods on this thread. Is it lawful for me to use a handheld two way walkie talkie between two cars?

Unless you're not in proper control then it's lawful.

The mobile phone offence is straightforward. Handheld + using it = offence.

Some lawyers will argue that using it means using an interactive function. This is plainly wrong as that's not what the legislation says - but occassionally courts have accepted that definition and acquitted.

[NoNeed]

Dog Star said:

NoNeed said:

It doesn't matter if the OP was on the phone as the question asked was basically could the officers testimony stand up in court now it has been shown to be false.

If the police officer lies then I think that to base any conviction on anything else they have to say on that case is very dodgy.

I've had experience of exactly this happening to me.

In a nutshell - 1986. I got arrested for fighting. When this went to court the two officers were not allowed to hear each other testify, and upon cross-examination it was quite obvious that their stories had been superficially corroborated, but fell apart once detailed questions were asked - they'd even held their notebooks up and stated that the notes had been written at the time of the offence. O rly? The questions weren't even about the offence, just the location, where they were when it happened, which way did they drive to the station, did they stop en route. Their answers did not match on any of the above. My solicitor didn't even get as far as asking about any fighting or the actual alleged offence, the magistrates held their hands up and stated that they refused to continue as they could not possibly trust the police officer's testimony (I can't remember the exact terminology). They threw it out.

I do remember the prosecution/CPS bod going bonkers - he was shouting "but an offence has been committed! An offence has been committed!". Indeed one had.

So back to the OP - my personal view is that even if he was on the phone, smoking a spliff and drinking from a bottle of scotch, the officers statement cannot and should not be trusted. Rules apply to both sides, no?


I would also say that admitting or denying an offence on a public forum before any court appearance has taken place would be stupid, very very stupid. And the OP is better off not answering the question on here. In private with a lawyer then yes he should be open but not here while he is considering a court date.

[NoNeed]

And those banging on about the OP not answering the question could have a go at answering his first as his was asked first. Would the officers testimony stand up in court now his paperwork has been shown to have been fabricated?

[julian64]

NoNeed said:

And those banging on about the OP not answering the question could have a go at answering his first as his was asked first. Would the officers testimony stand up in court now his paperwork has been shown to have been fabricated?

I suspect if the op was obviously chinese or black african then he may have a point about the validity of the other information, but unfortunately if the earlier picture is a true likeness then being indignant about a copper putting WB as the ethnic code would seem a little like clutching at straws

[anonymous-user]

Weird Neville, well said.

[Zeeky]

agtlaw said:

...Some lawyers will argue that using it means using an interactive function. This is plainly wrong as that's not what the legislation says - but occassionally courts have accepted that definition and acquitted.

Not plainly wrong as the Courts have had to define 'use' in other motoring legislation so it will have a contextual definiion.

[NoNeed]

julian64 said:

I suspect if the op was obviously chinese or black african then he may have a point about the validity of the other information, but unfortunately if the earlier picture is a true likeness then being indignant about a copper putting WB as the ethnic code would seem a little like clutching at straws

True, and that is probably the best answer for the OP's question, all this was he wasn't crap about the phone is quite irrelevant IMHO.

[herewego]

IanA2 said:

Does anyone no whether the OP's statement that he was told that even holding the phone is an offence, is true. I ask as I use TonTom on an iPhone (brilliant by the way) and sometimes I have to adjust it (press a button or two) whilst it's in its GPS holder thingy. So I am "operating" a phone, but am I committing an offence?

If it's in a fixed holder, there's no offence by pressing buttons, if it's in your hand then yes.

[Snowboy]

I think . . .
The OP will not admit to being on the phone as the police might track down his online admission of guilt.
Although his silence speaks volumes.


The whole ethnicity thing just seems to be an attempt at a technicality.


The laws about phone use have lots of gaps, and lots of perhaps over zelous clauses.
But, they do the job.