Woman jailed for using a mobile minutes before a fatal crash
Discussion
SK425 said:
tenpenceshort said:
When it comes down to it, in pleading guilty, without a Newton Hearing to dispute any of it, the defendant accepted the prosecution's case, including the allegation that being distracted by the phone was the cause of the inattention. As far as I'm aware that entitles the judge to treat it as fact.
Is that how it works? Is pleading guilty to dangerous driving saying, "I accept that my driving fell far below the 'careful and competent' standard" or is pleading guilty saying "I accept that my driving fell far below the standard and I accept every last word the prosecution says about me without question"?You can mitigate at the sentencing to try and lessen the impact of any aggravating features, but you can't challenge the facts as accepted by the guilty plea.
Overall it is a tactical situation. If you plead guilty at an early opportunity you get a 30% discount from whatever sentence you would have received after a guilty verdict at trial. This can make a significant difference to the amount of time you spend in prison. If you think it unlikely you could escape conviction following a trial, then you need to consider how to achieve the lightest sentence.
You could offer the prosecution a guilty plea based upon an agreed set of facts. They might not accept a guilty plea on that basis. If you can't agree with the prosecution, you might plead guilty but also have a Newton Hearing to have mini trial on some of the allegations. There is no guarantee you would win at the Newton Hearing and as far as I'm aware judges don't tend to have a great deal of sympathy with offenders who fail at Newton Hearings. This might negatively affect your chances of successful mitigation.
Your third option is to suck it up and accept the case as presented, being as remorseful as you possibly can (remorse being a significant feature in mitigation). That means the prosecution case will be outlined at the sentencing hearing, typically unchallenged as to the facts, and it is those facts the press will report as being a proper account as to what actually happened.
In my case there was plenty I didn't agree with and it was upsetting to read the press reports. Having said that, had I not pleaded guilty as I did my sentence would have been significantly longer and I'd have had nothing to show for it.
tenpenceshort said:
What do you think? When prosecuted you are there to answer specific allegations about your conduct. If you plead guilty and don't challenge the allegations, you admit the conduct.
You can mitigate at the sentencing to try and lessen the impact of any aggravating features, but you can't challenge the facts as accepted by the guilty plea.
Overall it is a tactical situation. If you plead guilty at an early opportunity you get a 30% discount from whatever sentence you would have received after a guilty verdict at trial. This can make a significant difference to the amount of time you spend in prison. If you think it unlikely you could escape conviction following a trial, then you need to consider how to achieve the lightest sentence.
You could offer the prosecution a guilty plea based upon an agreed set of facts. They might not accept a guilty plea on that basis. If you can't agree with the prosecution, you might plead guilty but also have a Newton Hearing to have mini trial on some of the allegations. There is no guarantee you would win at the Newton Hearing and as far as I'm aware judges don't tend to have a great deal of sympathy with offenders who fail at Newton Hearings. This might negatively affect your chances of successful mitigation.
Your third option is to suck it up and accept the case as presented, being as remorseful as you possibly can (remorse being a significant feature in mitigation). That means the prosecution case will be outlined at the sentencing hearing, typically unchallenged as to the facts, and it is those facts the press will report as being a proper account as to what actually happened.
In my case there was plenty I didn't agree with and it was upsetting to read the press reports. Having said that, had I not pleaded guilty as I did my sentence would have been significantly longer and I'd have had nothing to show for it.
This is about right. The only thing i would add is that if Pros don't agree a basis then you can run it past the judge anyway. He may accept it. However, the appropriate time to do this is NOT during your mitigation speech! Also, if you have a Newton hearing and your basis isn't accepted by the judge then you lose credit for an early guilty plea - which could be the difference between immediate and suspended custody, non-custodial disposal v custody, etc.You can mitigate at the sentencing to try and lessen the impact of any aggravating features, but you can't challenge the facts as accepted by the guilty plea.
Overall it is a tactical situation. If you plead guilty at an early opportunity you get a 30% discount from whatever sentence you would have received after a guilty verdict at trial. This can make a significant difference to the amount of time you spend in prison. If you think it unlikely you could escape conviction following a trial, then you need to consider how to achieve the lightest sentence.
You could offer the prosecution a guilty plea based upon an agreed set of facts. They might not accept a guilty plea on that basis. If you can't agree with the prosecution, you might plead guilty but also have a Newton Hearing to have mini trial on some of the allegations. There is no guarantee you would win at the Newton Hearing and as far as I'm aware judges don't tend to have a great deal of sympathy with offenders who fail at Newton Hearings. This might negatively affect your chances of successful mitigation.
Your third option is to suck it up and accept the case as presented, being as remorseful as you possibly can (remorse being a significant feature in mitigation). That means the prosecution case will be outlined at the sentencing hearing, typically unchallenged as to the facts, and it is those facts the press will report as being a proper account as to what actually happened.
In my case there was plenty I didn't agree with and it was upsetting to read the press reports. Having said that, had I not pleaded guilty as I did my sentence would have been significantly longer and I'd have had nothing to show for it.
The elapsed time is worrying. I had to brake hard in a village the other day when a kid stepped into the road without looking. No drama because I always try to drive to the conditions and was around 20mph (in a 30). About a minute earlier i'd been overtaking a bunch of slowsters at fairly high speed.
It occured to me that if for some reason I wasn't able to avoid the dangerous pedestrian, the slowsters would have used their faulty definition of safe driving to say something like "yeah he came past like a nut just before" and that would have harmed my defence.
In this case there might have been more evidence but the previous form and calls is just slightly worrying
It occured to me that if for some reason I wasn't able to avoid the dangerous pedestrian, the slowsters would have used their faulty definition of safe driving to say something like "yeah he came past like a nut just before" and that would have harmed my defence.
In this case there might have been more evidence but the previous form and calls is just slightly worrying
The choice of "fairly high speed" is yours to make, but the price you pay is the chance of negative statements (you say realise) would materialise. The idea that witness evidence of your driving immediately prior to a collision shouldn't be admissible seems more worrying than your own concerns.
longshot said:
SK425 said:
Mill Wheel said:
The reasons are all there in the report - it doesn't seem sloppy to me, she got what she deserved.
Something's missing in the report. Why did the judge conclude thisBBC News said:
Sentencing Usaceva, Judge Sean Enright said: "If you were not sending texts at the time, then you were fiddling with your phone and that is what caused this collision.
when mitigation said this?BBC News said:
Mitigating for her, Ian Brownhill said: "There is a gap of six minutes - I would say clear water - between using the phones and the accident itself."
Either the judge reached that conclusion by rectal pluck, or despite what was said in mitigation the judge's conclusion was supported by some evidence. We might choose to believe that one of those is rather more likely than the other, but the report doesn't shed any light.To do so would mean either her car was faulty or she wasn't looing where she was going.
She had and had been using to mobile phones, ergo....
I personally find it baffling why people can't turn the things off when they get into their car or for that matter why people allow their lives to be governed by them.
tenpenceshort said:
The choice of "fairly high speed" is yours to make, but the price you pay is the chance of negative statements (you say realise) would materialise. The idea that witness evidence of your driving immediately prior to a collision shouldn't be admissible seems more worrying than your own concerns.
Of course they can be heard but the fact I was driving dangerously in some layman's opion prior to an accident he didn't see is bad news if that is considerd relevant first and accurate second.Norfolk slowsters will flash and hoot to show their annoyance even when you don't 'speed' during an overtake.
supermono said:
Of course they can be heard but the fact I was driving dangerously in some layman's opion prior to an accident he didn't see is bad news if that is considerd relevant first and accurate second.
Norfolk slowsters will flash and hoot to show their annoyance even when you don't 'speed' during an overtake.
The decision over whether your driving was careless or dangerous won't lay with the witness, though. It will be the magistrates/District judge/jury, taking into account all the evidence and comparing your overall behaviour in the circumstances against what would be expected of the notional careful and competent driver.Norfolk slowsters will flash and hoot to show their annoyance even when you don't 'speed' during an overtake.
tenpenceshort said:
The choice of "fairly high speed" is yours to make, but the price you pay is the chance of negative statements (you say realise) would materialise. The idea that witness evidence of your driving immediately prior to a collision shouldn't be admissible seems more worrying than your own concerns.
Why then (as I understand it) are peoples previous criminal convictions not used as evidence in criminal trials. Say you have somone accused of breaking and entering, isn't their previous history of breaking an entering a factor in deciding someones guilt?Personally I do think that a person prior behaviour is a factor, but there has to be some other evidence of guilt. In the case of this person, the evidence seems to be that she used the phone 6 minutes before, but there is no evidence that she was using the phone at the time of the accident.
98elise said:
Why then (as I understand it) are peoples previous criminal convictions not used as evidence in criminal trials. Say you have somone accused of breaking and entering, isn't their previous history of breaking an entering a factor in deciding someones guilt?
Personally I do think that a person prior behaviour is a factor, but there has to be some other evidence of guilt. In the case of this person, the evidence seems to be that she used the phone 6 minutes before, but there is no evidence that she was using the phone at the time of the accident.
I think you're conflating two separate things; on your first point, your previous offences (subject to rules regarding relevancy and recency) can be disclosed to the court- search for 'bad character application'.Personally I do think that a person prior behaviour is a factor, but there has to be some other evidence of guilt. In the case of this person, the evidence seems to be that she used the phone 6 minutes before, but there is no evidence that she was using the phone at the time of the accident.
On the latter, the driving immediately before the accident is relevant in determining whether the driving was dangerous. The accident was a symptom of the bad driving, rather than the cause. Someone could drive dangerously for a sustained period of time prior to being detected or involved in an incident. Evidence of that bad driving is directly relevant to the question of their driving at the time of the offence (as in, it could be one continuous example of dangerous driving from the moment they set off to the moment they crash).
The difference is if it's a matter of opinion. If I'm seen on CCTV hooning through the previous village then crash into someone in the next then it's likely from my previous style that I was an accident waiting to happen.
If however I overtake a train of three cars to access the clear road ahead as in this case on an open road where the speed chosen was safe, it's done at a different time and under different circumstances to the accident and shouldn't therefore be relevant, however vocal the slowster is in their opinion.
The phone thing I suspect is more like the previous village thing actually
If however I overtake a train of three cars to access the clear road ahead as in this case on an open road where the speed chosen was safe, it's done at a different time and under different circumstances to the accident and shouldn't therefore be relevant, however vocal the slowster is in their opinion.
The phone thing I suspect is more like the previous village thing actually
Martin4x4 said:
Every single day I see cars wandering around their lane on the motor way and when you get along side them they are on the phone and oblivious.
Using a mobile phone in a car is dangerous, idiotic and indefensible.
A couple of thoughts...Using a mobile phone in a car is dangerous, idiotic and indefensible.
"Everybody who weaves around in lane is on the phone" is not the same as "everybody who is on the phone weaves around in lane". Do you look as closely at the people who aren't weaving? What proportion of them are on the phone too?
Your last statement doesn't seem right to me. Is evidence of phone use alone a guarantee of a careless or dangerous driving conviction? If so, there are an awful lot of people getting let off very lightly when they get a small fine and a few points for being on the phone. Your statement is equivalent to "Exceeding the speed limit is dangerous, idiotic and indefensible" and I don't think it's that simple. If it weren't the case that it can sometimes be safe to use a mobile phone when driving, there would have been no need to specifically ban it because existing laws would have already made it illegal.
SK425 said:
Martin4x4 said:
Every single day I see cars wandering around their lane on the motor way and when you get along side them they are on the phone and oblivious.
Using a mobile phone in a car is dangerous, idiotic and indefensible.
A couple of thoughts...Using a mobile phone in a car is dangerous, idiotic and indefensible.
"Everybody who weaves around in lane is on the phone" is not the same as "everybody who is on the phone weaves around in lane". Do you look as closely at the people who aren't weaving? What proportion of them are on the phone too?
Your last statement doesn't seem right to me. Is evidence of phone use alone a guarantee of a careless or dangerous driving conviction? If so, there are an awful lot of people getting let off very lightly when they get a small fine and a few points for being on the phone. Your statement is equivalent to "Exceeding the speed limit is dangerous, idiotic and indefensible" and I don't think it's that simple. If it weren't the case that it can sometimes be safe to use a mobile phone when driving, there would have been no need to specifically ban it because existing laws would have already made it illegal.
tenpenceshort said:
SK425 said:
tenpenceshort said:
When it comes down to it, in pleading guilty, without a Newton Hearing to dispute any of it, the defendant accepted the prosecution's case, including the allegation that being distracted by the phone was the cause of the inattention. As far as I'm aware that entitles the judge to treat it as fact.
Is that how it works? Is pleading guilty to dangerous driving saying, "I accept that my driving fell far below the 'careful and competent' standard" or is pleading guilty saying "I accept that my driving fell far below the standard and I accept every last word the prosecution says about me without question"?I had a crash not too long after learning to drive and I got done for Careless Driving. At the time I wouldn't have even known where to look for the formal definition of 'careless' but I certainly felt my driving met the natural definition of the word so I believed a careless driving conviction wasn't inappropriate. It was a bad overtaking decision and I ended up passing my intended overtakee (a van), realising it was all a bit of a mistake, braking as I passed another car I hadn't intended to overtake - and it all ended in a bump further down the road. In my statement to the police I said that I'd started braking before I passed the second car. In court, a thing was read out called the Statement of Facts which included a statement that I hadn't started braking until after I passed the second car (I presume that came from the witness statement they took from the driver of that other car).
Are you saying that my guilty plea amounted to an implicit acceptance of everything the prosecution said, and therefore an implicit admission that I'd lied in my statement to the police?
After the Statement of Facts was read out, the magistrate asked me if I had anything I wanted to say. I told them that the Statement of Facts wasn't quite right and I corrected it on that point. My recollection is that this all happened after I'd been asked whether I wanted to plead guilty or not guilty, although it was a jolly long time ago and I can't be sure of the sequence - maybe it was Statement of Facts first and plea afterwards.
Zod said:
Could you answer this question, please: do you agree that it should be an offence to use a handheld communications device while driving?
Why do you ask?As it happens, I'm not entirely sold on it being an offence but that's academic because it is an offence. That's beside the point of my post though.
SK425 said:
What if you plead guilty and do challenge some part(s) of the allegations? I would have thought that must be possible. It can't be unheard of for the defence's story to differ from prosecution's story in ways that aren't enough to argue that the defendant is not guilty. That's what I was getting at.
There are processes you can go through. These have been explained above, so perhaps you'd be kind enough to read earlier posts in the thread rather than risking it being filled with repetition?SK425 said:
Zod said:
Could you answer this question, please: do you agree that it should be an offence to use a handheld communications device while driving?
Why do you ask?As it happens, I'm not entirely sold on it being an offence but that's academic because it is an offence. That's beside the point of my post though.
tenpenceshort said:
There are processes you can go through. These have been explained above, so perhaps you'd be kind enough to read earlier posts in the thread rather than risking it being filled with repetition?
Forgive me. Your comment about not challenging the allegations made me wonder if I hadn't expressed myself as clearly as I could. I read your and agtlaw's posts about the processes that exist. They presumably can't remove all possibility for differences between what the prosecution and defence say happened - just because you go through a process doesn't mean you will necessarily end up agreeing on everything - and it seems completely irrational and arbitrary to then decide that on all conflicting points one story must be true and the other false for no other reason than that overall guilt happens not to be disputed. Why would a court not just do what any normal person in the real world would do when one person says one thing and the other says something else and conclude that you can't be sure what happened on that particular detail?If nothing more material is said about phone fiddling than...
Prosecution: "You are guilty of dangerous driving and you were fiddling with your phone at the time of the crash."
Defence "I am guilty of dangerous driving, although I was not fiddling with my phone at the time of the crash."
...that can not be sufficient for the judge to say: "You were fiddling with your phone at the time of the crash."
Edited by SK425 on Monday 4th August 13:35
Zod said:
I asked becasue I wonder whether your attitude to the offence is a motivator for your extraordinarily persisent attempts to cast doubt on the solidity of this conviction.
What gave you that idea?I have no doubt about the solidity of this conviction. Not least because the defendant pleaded guilty.
SK425 said:
Prosecution: "You are guilty of dangerous driving and you were fiddling with your phone at the time of the crash."
Defence "I am guilty of dangerous driving, although I was not fiddling with my phone at the time of the crash."
...that can not be sufficient for the judge to say: "You were fiddling with your phone at the time of the crash."
That is not what happened in this case. If the defence didn't agree the defendant was fiddling with her phone, they could have had a Newton hearing to establish whether she was or was not on the phone. She might 'win' that hearing and the judge be unable to say she was fiddling with her phone. She may have lost and the evidence be sufficient to satisfy the judge that she was.Defence "I am guilty of dangerous driving, although I was not fiddling with my phone at the time of the crash."
...that can not be sufficient for the judge to say: "You were fiddling with your phone at the time of the crash."
In any case, the defence didn't ask for one of these hearings and didn't contest the prosecution case, and the defendant pleaded guilty.
On the basis the defendant pleaded guilty and chose not to contest the prosecution case in any way, shape or form, the Judge is entitled to agree with the prosecution's version of events and treat it as fact, which is what happened here.
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