Earlier this month while I was stationary in traffic in North London listening to streaming podcast, I grabbed my phone to check the remaining time. While doing so I saw a cyclist with helmet cam pushing his head through the open passenger window to see what was visible on my phone screen.
I found the whole situation strange and disturbing.
10 days later I received the NIP, my question is, can a member of the public (cyclist) enter your car by pushing his head through the open window with attached helmet cam and record you while inside your car without consent?
I am planning to challenge this but need guidance and advice on best course of action.
Many Thanks
10 days later I received the NIP, my question is, can a member of the public (cyclist) enter your car by pushing his head through the open window with attached helmet cam and record you while inside your car without consent?
Can he? Well obviously, he just did.
Whether he broke any laws is irrelevant, that does not invalidate any evidence he obtained of an (alleged) criminal offence.
What evidence do you have to defend the charge?
That’s not to say that the cyclist isn’t a complete d1ck.
10 days later I received the NIP, my question is, can a member of the public (cyclist) enter your car by pushing his head through the open window with attached helmet cam and record you while inside your car without consent?
At worst that would appear to be a civil wrong of trespass, but even if it were a criminal act it seems unlikely in the extreme that a court would exclude the evidence under
section 78 of PACE.
It doesn't sound like you have any viable defence, at least from what you've said so far.
I am planning to challenge this but need guidance and advice on best course of action.
Are you planning to challenge it on the basis that you did not commit an offence or on the basis that you think the evidence might be inadmissible?
Many thanks for forum members prompt response and feedback,
I was hoping to challenge it on the basis that the evidence might be inadmissible, but based on what cp8759 & Dave Green said, this is a no go.
I am planning to challenge this but need guidance and advice on best course of action.
Are you planning to challenge it on the basis that you did not commit an offence or on the basis that you think the evidence might be inadmissible?
In order to get the evidence excluded under section 78 of PACE, you would have to show that "having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".
That is a very high bar to meet indeed.
The courts in this country are not like those in America (or in American films and TV programmes), where cases are dropped on 'technicalities' and other procedural issues. They are generally pragmatic and unlikely to exclude evidence, even if there was arguably some misconduct in its gathering, if it is relevant to a case. Criminal proceedings have to be conducted in accordance with the 'overriding objective', which includes "acquitting the innocent and convicting the guilty", rather than strict adherence to procedural requirements, provided the proceedings are still fair.
And that's assuming the cyclist did anything wrong by filming you in your car, which I'm not convinced is the case.
The obvious question is if you were stationary in traffic, were you driving for the purposes of the relevant legislation?
The obvious question is if you were stationary in traffic, were you driving for the purposes of the relevant legislation?
To date I am not aware of any defences have succeeded using this argument, there are a number of reported failures. I don't believe there is any case law on this as yet and as such I'd suggest it's a bit of a gamble with the circa extra £660 in costs that would result if found guilty after a trial.
It also goes against the published guidance (acknowledging that isn't the law) on gov.uk as well as the research showing how long after 'using' the distraction effect continues.
There was a fairly recent fail in Bristol at a set of traffic lights.
That’s not to say that the cyclist isn’t a complete d1ck.
I would just like to thank the user (who will remain anonymous) who reported me to myself for this comment. Bravo!
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