Free Traffic Legal Advice
Live cases legal advice => Speeding and other criminal offences => Topic started by: DontStandForNonsense on October 23, 2024, 12:34:38 pm
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NIP?
Notice of Intended Prosecution
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Unfortunately the offence isn't using it but is handling it/touching it when it is not in a holder so it sounds as if you are bang to rights. Past driving record is irrelevant. Others may have further comment though.
Just had this back from Norfolk & Suffolk rozzers after outing someone for mobile phone use caught on dashcam. They advised the NIP was being withdrawn. Relevant bit of reply reads thusly:
".....whilst the phone is obviously held, we cannot see the screen and thus ‘prove’ it was being used."
NIP?
So it wasn't that the police stopped him, it was you passing it on?
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Unfortunately the offence isn't using it but is handling it/touching it when it is not in a holder so it sounds as if you are bang to rights. Past driving record is irrelevant. Others may have further comment though.
Just had this back from Norfolk & Suffolk rozzers after outing someone for mobile phone use caught on dashcam. They advised the NIP was being withdrawn. Relevant bit of reply reads thusly:
".....whilst the phone is obviously held, we cannot see the screen and thus ‘prove’ it was being used."
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Can you post a redacted copy on here so we know what we are dealing with. See the sticky at th etop of the page on how to post stuff.
https://www.ftla.uk/speeding-and-other-criminal-offences/read-this-first-before-posting-your-case!/
Redacted copy of what? And why do you want to see it?
This:I think it's this one: "A Conditional Offer of a Fixed Penalty (COFP)?" On the previous page.
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Can you post a redacted copy on here so we know what we are dealing with. See the sticky at th etop of the page on how to post stuff.
https://www.ftla.uk/speeding-and-other-criminal-offences/read-this-first-before-posting-your-case!/
Redacted copy of what? And why do you want to see it?
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But the fine is £200
No, £200 is the fixed penalty offer. If you go to court you have rejected that offer, and your fine will be income-related as explained above.
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But the fine is £200
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are their additional charges or points?
No additional points. Six is the only number that can be imposed for the offence. The court does have the power to order your disqualification for any period they see fit, but this is very unlikely.
But there are considerably increased financial penalties. If convicted you will pay fine of half a week's net income, a "Victim Surcharge" of 40% of that fine and prosecution costs of around £650. If your weekly income if £500 it will cost you £1,000.
Also, what happens to lying officer if you prove you weren't doing what they accuse you of?
If you adopt the approach that the officer is lying you will received short shrift. The best you can suggest is that he was mistaken.
Wait so in the case of someone earning £800 per week, are you saying their fine would be:
£400 (50% of earnings) + £80 (40% of original fine) + £650?
I wouldn't in a court of law say the Policeman lied (although they frequently do).
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No. 40% of the £400 fine is £160, not £80.
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are their additional charges or points?
No additional points. Six is the only number that can be imposed for the offence. The court does have the power to order your disqualification for any period they see fit, but this is very unlikely.
But there are considerably increased financial penalties. If convicted you will pay fine of half a week's net income, a "Victim Surcharge" of 40% of that fine and prosecution costs of around £650. If your weekly income if £500 it will cost you £1,000.
Also, what happens to lying officer if you prove you weren't doing what they accuse you of?
If you adopt the approach that the officer is lying you will received short shrift. The best you can suggest is that he was mistaken.
[/quote]
Wait so in the case of someone earning £800 per week, are you saying their fine would be:
£400 (50% of earnings) + £80 (40% of original fine) + £650?
I wouldn't in a court of law say the Policeman lied (although they frequently do).
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So basically your word against theirs, with theirs being taken as gospel unless you can prove otherwise?
You have to cast sufficient doubt on the officer's evidence so that the court is not sure it's correct. What you must bear in mind is that the court will consider that the officer has little to gain from committing perjury whereas you have a lot to gain by convincing them he is mistaken. You have the additional problem that despite being asked twice on here what you actually did or did not do, you haven't elaborated on "I may have looked down and fumble with my phone for a brief moment to turn of a reminder alarm". If you do that in court it won't help you convince the Bench that you did not use the phone.
What incentive does a person have not trying their luck contesting?
The Criminal Justice System is not a game where you "try your luck". Its aim is to convict the guilty and see the innocent acquitted.
are their additional charges or points?
No additional points. Six is the only number that can be imposed for the offence. The court does have the power to order your disqualification for any period they see fit, but this is very unlikely.
But there are considerably increased financial penalties. If convicted you will pay fine of half a week's net income, a "Victim Surcharge" of 40% of that fine and prosecution costs of around £650. If your weekly income if £500 it will cost you £1,000.
Also, what happens to lying officer if you prove you weren't doing what they accuse you of?
If you adopt the approach that the officer is lying you will received short shrift. The best you can suggest is that he was mistaken.
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See post by AGTLAW (a well respected motoring lawyer) on Pistonheads where he says
The offence is made out when driving and holding a phone in your hand and using that phone.
- all three elements necessary.
The law actually says nothing about holding it in your hand; it defines what a hand-held device is and goes on to say that you mustn't use one whilst driving.
Can I request what evidence they think they have?
Only if you do not take up the fixed penalty offer. You will then be prosecuted in court and before you enter your plea you should be provided with the evidence the police will rely on to convict you. This will probably consist of a statement from the officer, saying what he saw you doing.
I think you need to ponder over this question:
I may have looked down and fumble with my phone for a brief moment to turn of a reminder alarm
As southpaw has already asked, did you or didn't you? If you can't remember, you (and the court) may have to rely on the officer's evidence.
So basically your word against theirs, with theirs being taken as gospel unless you can prove otherwise?
What incentive does a person have not trying their luck contesting? If it falls against you in court, are their additional charges or points?
Also, what happens to lying officer if you prove you weren't doing what they accuse you of?
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Can I request their evidence?
What "letter" have you received? Is it a Notice of Intended Prosecution (NIP)? A Conditional Offer of a Fixed Penalty (COFP)? Or what?
As for evidence, you can request what you like but it's unlikely you'll get it unless you opt for a court hearing.
I think it's this one: "A Conditional Offer of a Fixed Penalty (COFP)?"
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Haha. Two aides of the same coin.
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Touché, Roy !!! :)
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It might have been better if I'd quoted this...
I think my precis in reply #6 covers it:
it defines what a hand-held device is and goes on to say that you mustn't use one whilst driving.
I think you'll find it says the opposite! It says you mustn't drive if you are using a phone.
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).
Off with my pedant's hat!
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It might have been better if I'd quoted this...
I think my precis in reply #6 covers it:
it defines what a hand-held device is and goes on to say that you mustn't use one whilst driving.
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The law actually says:
It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.
This means you must not use a device in your hand for any reason, whether online or offline.
For example, you must not text, make calls, take photos or videos, or browse the web.
The law still applies to you if you’re:
stopped at traffic lights
queuing in traffic
supervising a learner driver
driving a car that turns off the engine when you stop moving
holding and using a device that’s offline or in flight mode
What law actually says all that?
That was taken from here - https://www.gov.uk/using-mobile-phones-when-driving-the-law
It might have been better if I'd quoted this, it seems the bit about whether on-line or not isn't actually in the legislation, even the government doesn't know what the legislation actually says so what chance do the rest of us have:
1. These Regulations may be cited as the Road Vehicles (Construction and Use) (Amendment) (No. 4) Regulations 2003 and shall come into force on 1st December 2003.
Amendment of the Road Vehicles (Construction and Use) Regulations 1986
2. The Road Vehicles (Construction and Use) Regulations 1986(2) are amended by inserting after regulation 109—
“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(3).”
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The law actually says:
It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.
This means you must not use a device in your hand for any reason, whether online or offline.
For example, you must not text, make calls, take photos or videos, or browse the web.
The law still applies to you if you’re:
stopped at traffic lights
queuing in traffic
supervising a learner driver
driving a car that turns off the engine when you stop moving
holding and using a device that’s offline or in flight mode
What law actually says all that?
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Unfortunately the offence isn't using it but is handling it/touching it when it is not in a holder so it sounds as if you are bang to rights. Past driving record is irrelevant. Others may have further comment though.
See post by AGTLAW (a well respected motoring lawyer) on Pistonheads (https://www.pistonheads.com/gassing/topic.asp?h=0&f=10&t=2095840&i=40) where he says
The offence is made out when driving and holding a phone in your hand and using that phone.
- all three elements necessary.
The OP admitted using it, handling it and driving in his/her original post so I still stand by my comment of appearing to be bang to rights, perhaps I should have said "isn't just using it". All three elements that you allege are required are present here - holding it, driving, and using it even if that was to cancel an alarm/notification.
The law actually says:
It’s illegal to hold and use a phone, sat nav, tablet, or any device that can send or receive data, while driving or riding a motorcycle.
This means you must not use a device in your hand for any reason, whether online or offline.
For example, you must not text, make calls, take photos or videos, or browse the web.
The law still applies to you if you’re:
stopped at traffic lights
queuing in traffic
supervising a learner driver
driving a car that turns off the engine when you stop moving
holding and using a device that’s offline or in flight mode
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See post by AGTLAW (a well respected motoring lawyer) on Pistonheads where he says
The offence is made out when driving and holding a phone in your hand and using that phone.
- all three elements necessary.
The law actually says nothing about holding it in your hand; it defines what a hand-held device is and goes on to say that you mustn't use one whilst driving.
Can I request what evidence they think they have?
Only if you do not take up the fixed penalty offer. You will then be prosecuted in court and before you enter your plea you should be provided with the evidence the police will rely on to convict you. This will probably consist of a statement from the officer, saying what he saw you doing.
I think you need to ponder over this question:
I may have looked down and fumble with my phone for a brief moment to turn of a reminder alarm
As southpaw has already asked, did you or didn't you? If you can't remember, you (and the court) may have to rely on the officer's evidence.
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Can I request their evidence?
What "letter" have you received? Is it a Notice of Intended Prosecution (NIP)? A Conditional Offer of a Fixed Penalty (COFP)? Or what?
As for evidence, you can request what you like but it's unlikely you'll get it unless you opt for a court hearing.
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Can I request their evidence?
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Unfortunately the offence isn't using it but is handling it/touching it when it is not in a holder so it sounds as if you are bang to rights. Past driving record is irrelevant. Others may have further comment though.
See post by AGTLAW (a well respected motoring lawyer) on Pistonheads (https://www.pistonheads.com/gassing/topic.asp?h=0&f=10&t=2095840&i=40) where he says
The offence is made out when driving and holding a phone in your hand and using that phone.
- all three elements necessary.
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I may have looked down and fumble with my phone for a brief moment to turn of a reminder alarm that is a huge distracting while driving.
Did you or did you not?
PS, In almost 30 years of driving, I have never cut a red light or gone over the speed limits.
That undermines your credibility, as it’s completely incredible.
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Unfortunately the offence isn't using it but is handling it/touching it when it is not in a holder so it sounds as if you are bang to rights. Past driving record is irrelevant. Others may have further comment though.
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Just over 10 days ago while driving my vehicle, I was stopped by a police car and told it was for using a handheld mobile phone.
He didn't share any evidence with me and I'm not sure where exactly he had seen me to be using my phone. I did not admit or deny using the phone and he didn't ask to see my phone either. I got me to confirm my details and sign a digital copy of some sort of declaration which I think was more to do with confirming he stopped me than an admission of any guilt.
Now I never even send/read texts or browse my phone while driving. Calls I take via bluetooth which is hardwired into my vehicle with the relevant buttons on my steering wheel. I may have looked down and fumble with my phone for a brief moment to turn of a reminder alarm that is a huge distracting while driving. Of course It would be silly to not have waited for a safe place to pull over somewhere.
My work is totally dependent on me being able to drive and I fear this one alleged offence will render me uninsurable or unable to pay the inflated insurance costs in the following years which I am told 6 points will certainly inflate.
From the letter, it seems they are tell me I can accept 6 points with a £200 fine, or contest it in court.
I would really appreciate any advice that could help avoid me getting points.
Thank you in advance.
PS, In almost 30 years of driving, I have never cut a red light or gone over the speed limits.