Nicked on phone

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Discussion

p1esk

4,914 posts

195 months

Tuesday 30th August 2016
quotequote all
agtlaw said:
Police officer/s saw D driving whilst messing about with a CD and CD case. Apart from aforementioned, no bad driving alleged. Charged as a 'not in control' offence contrary to s. 41D(a) and Regulation 104 C&U Regs. Pleaded NG. Case adjourned to trial. Written reps to CPS. Nothing heard back despite chasing. Day of trial - prosecutor tells me he hasn't heard of this offence and wants to look at it. Goes away for a bit and comes back to tell me he's binning it. D has his costs awarded from central funds.
Thank you for that. Given that there was no suggestion of bad driving, it sounds to me like an error on the part of the police. They should have contented themselves with 'having a word' with the driver.

I wonder how much that little episode cost the taxpayer.

p1esk

4,914 posts

195 months

Tuesday 30th August 2016
quotequote all
johnfm said:
I see the vociferous anti-mobile phone mob are in the house...

...amusing really.

Mobile phone ownership has increased dramatically over the last 10 years.

What are the stats over that period for collisions?

There are already laws to punish poor and dangerous driving. Not sure why there is a need to punish driving that isn't poor or dangerous because someone is using a phone or checking the time.

What next? Laws against changing radio station? Eating a chocolate bar?
I agree with you, so you don't need to include me in that 'mob', as I completely disagree with the current law covering the use of mobile phones while driving. IMHO the busybody lawmakers should have left it alone, and merely dealt with cases of bad driviing, regardless of the cause of it.

Ali Chappussy

876 posts

144 months

Tuesday 30th August 2016
quotequote all
V8LM said:
Have there been any Apple Watch prosecutions made in the UK?
There's nothing that says cock more about a man who wears an Apple watch!

p1esk

4,914 posts

195 months

Tuesday 30th August 2016
quotequote all
tapereel said:
SS2. said:
tapereel said:
Parliament have had 10 years to make a change and in that time have amended the regulation once but are still to make the change suggested.
Perhaps I was being too cryptic, but that's the point I was making.
No perhaps it was I who was cryptic. Maybe I should have said:
Parliament have had 10 years to make a change and in that time have amended the regulation once but still didn't bother to make the change suggested because Parliament are satisfied the law is made as they intended it to be made.
Yes indeed, but that doesn't make it right. I suppose when all is taken into account the law usually is right, even if some of us don't always like it, but sometimes the law can be an ass, and I think this is an example of it.

Quite frankly I believe the law intrudes far too much into our lives in the modern world. It seems to be covering more and more subject areas and in ever increasing detail, and I think this is the wrong way to be going.

Sorry, this is going outside the scope of this topic, so I'll leave it there.

p1esk

4,914 posts

195 months

Tuesday 30th August 2016
quotequote all
Countdown said:
AIUI DWDCA requires court, use of mobile phone can be dealt with via FPN which seems far more efficient for all concerned - no?
It's certainly more effective in getting a lot of people nicked, assuming there are sufficient police officers around to see all these transgressions and do the nicking. Does that count as more efficient? I don't know, but what does seem likely is that an awful lot of people will be getting nicked when in truth they were not causing any problem, and I'm not happy about that.

p1esk

4,914 posts

195 months

Tuesday 30th August 2016
quotequote all
Countdown said:
johnfm said:
Countdown said:
AIUI DWDCA requires court, use of mobile phone can be dealt with via FPN which seems far more efficient for all concerned - no?
No. Unless they also intend to deal with people adjusting the radio, eating, drinking and smoking by FPN.
Adjusting the radio, eating, drinking, and smoking, aren't against the law. When they are I'll be equally happy to see those dealt with by FPN.
Really? Would you truly be happy to see a further increase in the list of things we can't do, even though we may take all reasonable steps to ensure that no harm results from our action? Perhaps you would, but I certainly wouldn't.

Countdown

39,690 posts

195 months

Tuesday 30th August 2016
quotequote all
p1esk said:
Countdown said:
AIUI DWDCA requires court, use of mobile phone can be dealt with via FPN which seems far more efficient for all concerned - no?
It's certainly more effective in getting a lot of people nicked, assuming there are sufficient police officers around to see all these transgressions and do the nicking. Does that count as more efficient? I don't know, but what does seem likely is that an awful lot of people will be getting nicked when in truth they were not causing any problem, and I'm not happy about that.
It depends on your definition of "problem" I suppose. I find it highly irritating. It's not just the waiting for them to move off at green lights. I've seen people go through red lights because they hadn't realised they'd changed since the last time they looked. Their behaviour varies from the mildly annoying to the downright dangerous. I'm guessing this isn't just "my" opinion since the Guv'mint went to the bother of making it illegal. If people didn't do stupid things they wouldn't get nicked.

ps Driving around with dodgy lights, brakes or tyres won't necessarily result in an accident every time you do it, but it's still a knobbish thing to do....

Countdown

39,690 posts

195 months

Tuesday 30th August 2016
quotequote all
p1esk said:
Countdown said:
johnfm said:
Countdown said:
AIUI DWDCA requires court, use of mobile phone can be dealt with via FPN which seems far more efficient for all concerned - no?
No. Unless they also intend to deal with people adjusting the radio, eating, drinking and smoking by FPN.
Adjusting the radio, eating, drinking, and smoking, aren't against the law. When they are I'll be equally happy to see those dealt with by FPN.
Really? Would you truly be happy to see a further increase in the list of things we can't do, even though we may take all reasonable steps to ensure that no harm results from our action? Perhaps you would, but I certainly wouldn't.
It won't happen, for a myriad of reasons. The point I was making to JohnFM was "if it's illegal, don't do it."

GC8

19,910 posts

189 months

Tuesday 30th August 2016
quotequote all
Hackney said:
GC8 said:
He wasn't, that's the whole point. Holding is not using. This doesn't mean that people don't get tickets for it, accompanied by 'we take this to mean' type bullst, but that isn't the same thing.
  • you* despair? What about the rest of us that have to read your b******s
a) He WAS using the phone, using it to tell the time (so he says, but many have called BS on that)
b) If he wasn't using the phone why was it in his hand?

This is looking more and more like idiot gets caught on mobile phone (for the second time, don't forget) and tries to weedle his way out of it. He's then defended by (incorrect) pedants like yourself.
Wind your neck in. Holding is not using.

V8LM

5,166 posts

208 months

Tuesday 30th August 2016
quotequote all
GC8 said:
Hackney said:
GC8 said:
He wasn't, that's the whole point. Holding is not using. This doesn't mean that people don't get tickets for it, accompanied by 'we take this to mean' type bullst, but that isn't the same thing.
  • you* despair? What about the rest of us that have to read your b******s
a) He WAS using the phone, using it to tell the time (so he says, but many have called BS on that)
b) If he wasn't using the phone why was it in his hand?

This is looking more and more like idiot gets caught on mobile phone (for the second time, don't forget) and tries to weedle his way out of it. He's then defended by (incorrect) pedants like yourself.
Wind your neck in. Holding is not using.
If one had an iPhone 5s, for example, that requires pressing a button to show the time, would that be using?


p1esk

4,914 posts

195 months

Wednesday 31st August 2016
quotequote all
V8LM said:
GC8 said:
Hackney said:
GC8 said:
He wasn't, that's the whole point. Holding is not using. This doesn't mean that people don't get tickets for it, accompanied by 'we take this to mean' type bullst, but that isn't the same thing.
  • you* despair? What about the rest of us that have to read your b******s
a) He WAS using the phone, using it to tell the time (so he says, but many have called BS on that)
b) If he wasn't using the phone why was it in his hand?

This is looking more and more like idiot gets caught on mobile phone (for the second time, don't forget) and tries to weedle his way out of it. He's then defended by (incorrect) pedants like yourself.
Wind your neck in. Holding is not using.
If one had an iPhone 5s, for example, that requires pressing a button to show the time, would that be using?
I'm not familiar with the full details of the law, but it sounds as if even touching the phone could get you nicked, unless you're using a hands-free system. I still think the present law is a catch-all arrangement that makes no real sense.

The Mad Monk

10,474 posts

116 months

Wednesday 31st August 2016
quotequote all
p1esk said:
I'm not familiar with the full details of the law, but it sounds as if even touching the phone could get you nicked, unless you're using a hands-free system. I still think the present law is a catch-all arrangement that makes no real sense.
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?

Countdown

39,690 posts

195 months

Wednesday 31st August 2016
quotequote all
The Mad Monk said:
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?
What happens if you're not actually touching it but caressing it lovingly? The law doesn't say that "caressing it lovingly" is illegal, therefore surely it's legal?

tapereel

1,860 posts

115 months

Wednesday 31st August 2016
quotequote all
The Mad Monk said:
p1esk said:
I'm not familiar with the full details of the law, but it sounds as if even touching the phone could get you nicked, unless you're using a hands-free system. I still think the present law is a catch-all arrangement that makes no real sense.
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?
I agree, perfectly simple.

tapereel

1,860 posts

115 months

Wednesday 31st August 2016
quotequote all
Countdown said:
The Mad Monk said:
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?
What happens if you're not actually touching it but caressing it lovingly? The law doesn't say that "caressing it lovingly" is illegal, therefore surely it's legal?
The law does say that you can't 'use' a mobile telephone while driving therefore 'caressing it lovingly' is a form of 'use' hence could be unlawful.
I say could because some courts may deem it not to be use but that would be up to the court.
Maybe if you were seen caressing it lovingly on a video and that was shown to the court, the court can then make a decision whether they believed your cock-and-bull story of the mobile phone fetish or you had made it up because you were on the phone and didn't want to accept the penalty.
The law has been made this way to make the issue of a penalty simple without having to gather technical evidence that a call or communication was being made when the use was observed. The offence provides a more effective deterrence that way. It isn't used as much as it could be, imagine how much it would be used if there was a long technical description of particularly what was being done on the phone as the offence. Why you would get defendants making up all sorts of non-telephony uses; maybe even using their dick to phone. smile
So yes, caressing a telephone lovingly while holding it and driving is covered as even such perverted use is use.

p1esk

4,914 posts

195 months

Wednesday 31st August 2016
quotequote all
tapereel said:
The Mad Monk said:
p1esk said:
I'm not familiar with the full details of the law, but it sounds as if even touching the phone could get you nicked, unless you're using a hands-free system. I still think the present law is a catch-all arrangement that makes no real sense.
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?
I agree, perfectly simple.
It might be simple, and it might also be wrong, but that's just a matter of opinion.

One of my main concerns about it is that if we accept that the really damaging effects of mobile phone use by drivers is the distraction caused by the conversation (other than with a passenger in the car), then hands-free should also have been banned as that is really no safer than using a hand-held phone.

Anyhow that's just my view of it and clearly others think differently. smile

tapereel

1,860 posts

115 months

Wednesday 31st August 2016
quotequote all
p1esk said:
tapereel said:
The Mad Monk said:
p1esk said:
I'm not familiar with the full details of the law, but it sounds as if even touching the phone could get you nicked, unless you're using a hands-free system. I still think the present law is a catch-all arrangement that makes no real sense.
To me, it makes perfect sense.

If you haven't got hands free, leave the phone alone! Don't touch it!

There now. That wasn't too difficult, was it?
I agree, perfectly simple.
It might be simple, and it might also be wrong, but that's just a matter of opinion.

One of my main concerns about it is that if we accept that the really damaging effects of mobile phone use by drivers is the distraction caused by the conversation (other than with a passenger in the car), then hands-free should also have been banned as that is really no safer than using a hand-held phone.

Anyhow that's just my view of it and clearly others think differently. smile
It might well be wrong in that it doesn't go far enough and also ban hands-free use but going that far may have been unreasonable.
The biggest problem with the regulation at this time is that the observations of drivers that the abuse of the mobile is widespread and the apparent convictions are small in comparison. Video evidence has increased the offences detected and promises to do so in future. The likelihood of detection remains small so use is not fully deterred.
The frequency of drivers complaining on the Internet that they have a ticket when they say they were not using the phone to make a call is increasing so at least it seems use of the regulation is increasing on the part of the police.
It isn't a surprise that some drivers need a police officer at every corner before they comply with the law. I wouldn't be surprised if yellow uniform is legislated so drivers don't get too upset.

johnfm

13,668 posts

249 months

Wednesday 31st August 2016
quotequote all
ModernAndy said:
johnfm said:
My preference would be for evidence based policing. Mobile phone subscriptions have increased substantially in the last few years. Have collisions per mile driven increased to the same extent? I don't think there is correlation let alone causation in the accident data. It is yet another 'offence' with little or no basis in evidence.

Cue links to studies showing distraction and less attention during mobile phone use (even with a hands free). But are there more collisions?
Hopefully this really doesn't need pointed out but avoiding collisions and fatalities aren't the only considerations of the law.
Agree, but they are one of the main influencers of road traffic laws, no?

Red Devil

13,055 posts

207 months

Thursday 1st September 2016
quotequote all
marshalla said:
Red Devil said:
I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?
Not necessarily irrelevant, just not defined.

S110 says you must not use a mobile phone.
No it doesn't.

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:
110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone;
Those two extra words which you omitted above are crucial.

marshalla said:
It defines a mobile phone as a handheld device which can perform interactive communications.

It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.
I beg to differ

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:
(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;
Imo that is quite specific. If there is not, nor has been at any time, an interactive communication function involved in what you are doing then it is not a hand held device for the purposes of the Regulations and no offence has been committed.

The clock display on a mobile phone is clearly not any type of call. Nor, AFAIK, does it depend on an interactive function. It's the same RTC as you will find in any PC/laptop. I can set it to any time & date I fancy without communicating with anything/anybody.

For the avoidance of doubt, communication for the purposes of the legislation covers voice and data (of any kind).

marshalla said:
Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.

There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.
Indeed. As tapereel quite correctly states Parliament makes law. However what he fails to mention is that we don't have a Napoleonic system in the UK and it is for the judiciary to interpret, and clarify where necessary, what the law makers intentions were. Unless specifically stated otherwise words are to be given their ordinary day-to-day meaning.

As I pointed out earlier, the march of technology and the proliferation of multi-function devices make it difficult for legislators. A law which was enacted at a time when such a device either didn't exist or did not have a particular capability means that it can become a minefield for enforcement. One which is drafted too loosely or too widely is likely to have consequences. These will range from either being constantly challenged, pragmatically not being enforced, or simply falling into disregard/disrepute. None of these outcomes are good for society.

agtlaw said:
There is a Scottish case. Brocklebank was cleared at first instance of using a mobile phone. He contended that the offence is not made out by simply holding the phone.
Very interesting. Thank you.

agtlaw said:
The appellate court declined to interfere with that decision.

I don't think I've seen the judgment, so I'm unclear how authoritative the judgment is in Scotland, and in any event it would only be persuasive in the civilised world.
All of the sources I have been able to find say that JP Harry Terrell at Cupar District Court decided there was no case to answer and that the Crown was considering whether to appeal. However I can't find anything to substantiate whether or not it did. Of course that leaves any other court to come to a different conclusion.

If the PF chose not to take it further then that is quite telling. Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?

tapereel

1,860 posts

115 months

Thursday 1st September 2016
quotequote all
Red Devil said:
marshalla said:
Red Devil said:
I'm a tad unclear what you mean by this double negative. If you are contending that the 'interactive communication function' aspect is irrelevant, then what is the purpose of C&U Regs Section 110(6)(a)?
Not necessarily irrelevant, just not defined.

S110 says you must not use a mobile phone.
No it doesn't.

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:
110.—(1) No person shall drive a motor vehicle on a road if he is using—

(a)a hand-held mobile telephone;
Those two extra words which you omitted above are crucial.

marshalla said:
It defines a mobile phone as a handheld device which can perform interactive communications.

It doesn't say whether or not "using" only deals with the communications function, or if it covers all possible uses of the device.
I beg to differ

The Road Vehicles Construction and Use Amendment No. 4 Regulations 2003 said:
(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;
Imo that is quite specific. If there is not, nor has been at any time, an interactive communication function involved in what you are doing then it is not a hand held device for the purposes of the Regulations and no offence has been committed.

The clock display on a mobile phone is clearly not any type of call. Nor, AFAIK, does it depend on an interactive function. It's the same RTC as you will find in any PC/laptop. I can set it to any time & date I fancy without communicating with anything/anybody.

For the avoidance of doubt, communication for the purposes of the legislation covers voice and data (of any kind).

marshalla said:
Hence the arguments. There are very similar devices, without the communications function, which can be used in almost identical ways, but are not illegal to use because of the way the law is written. Then there are other communications devices which are explicitly legal to use. It's not clear if communication is the problem, or distraction by a complex device.

There's an implication, possible even an intent, which has yet (AFAIK) to be resolved in the higher courts - and until that happens, everything is just opinion.
Indeed. As tapereel quite correctly states Parliament makes law. However what he fails to mention is that we don't have a Napoleonic system in the UK and it is for the judiciary to interpret, and clarify where necessary, what the law makers intentions were. Unless specifically stated otherwise words are to be given their ordinary day-to-day meaning.

As I pointed out earlier, the march of technology and the proliferation of multi-function devices make it difficult for legislators. A law which was enacted at a time when such a device either didn't exist or did not have a particular capability means that it can become a minefield for enforcement. One which is drafted too loosely or too widely is likely to have consequences. These will range from either being constantly challenged, pragmatically not being enforced, or simply falling into disregard/disrepute. None of these outcomes are good for society.

agtlaw said:
There is a Scottish case. Brocklebank was cleared at first instance of using a mobile phone. He contended that the offence is not made out by simply holding the phone.
Very interesting. Thank you.

agtlaw said:
The appellate court declined to interfere with that decision.

I don't think I've seen the judgment, so I'm unclear how authoritative the judgment is in Scotland, and in any event it would only be persuasive in the civilised world.
All of the sources I have been able to find say that JP Harry Terrell at Cupar District Court decided there was no case to answer and that the Crown was considering whether to appeal. However I can't find anything to substantiate whether or not it did. Of course that leaves any other court to come to a different conclusion.

If the PF chose not to take it further then that is quite telling. Do courts in E&W take much notice of any decision(s) taken at a similar level north of the border?
Sub-section 6 is "quite specific". It specifically describes what a hand-held mobile telephone is. Where you go wrong in your reasoning is that sub-section 6 is SPECIFCALLY NOT part of the offence, the offence is specifically in sub-section 1.

You also err in your interpretation or have missed what I have writen as I said specifically that interpretation of the using, from evidence of that use is for a court to decide. The courts decide on guilt from evidence presented. There is little for the court to decide on in terms of interpretation of the law because the offence is very clearly written as you quoted above:
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).

(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.

...and (6) that desribes the device.

None of that says that the device is performing that interactive communication during the use just that it is such a device and it is that device that you must not use.

As it happens I know who drafted the regulation and my interpretation, the literal interpretation, is what the court visits first and it is what was intended by the person drafting and Parliamemt who subsequently passed that.

This prevents the need to update the law with technology, it prevents complex gathering of technical evidence and as such is easy to implement and enforce by the police and courts; more importantly the catch-all "using" means it has the capability, when enforced, to provide the maximum deterrent.

So don't use your hand-held mobile telephone while driving and holding it, coz u can't, n' that's wot the law sez.


Edited by tapereel on Thursday 1st September 06:46