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Man in the middle

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Man in the middle last won the day on December 20 2023

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  1. To be clear, what you will be attending is not a "Single Justice" court. Nobody can attend a SJ hearing. I haven't read all of this but I assume at some point you returned the Single Justice Procedure Notice pleading guilty and asking to attend court. This means your case is now not being handled under the SJ procedure and instead will be heard in the normal Magistrates' court.
  2. Thanks for letting us know. A NIP served beyond 14 days after the date of the alleged offence would not comply with Section 1 of the Road Traffic Offenders' Act, so no prosecution could succeed. The police know this but it is not unheard of for them to offer a fixed penalty in such circumstances, hoping the recipient is daft enough to accept it. But note there would still be an obligation to respond to the accompanying "request for driver's details."
  3. “Proof” is whatever the court finds as proof. The testimony of the two officers is evidence and if, based on that evidence, the court is sure, beyond reasonable doubt that the offence was committed, you will be convicted. There is a popular misunderstanding that there needs to be photographic evidence to support offences of this kind. There need not. Testimony from eye witnesses is often sufficient. You need to take a step back from the alleged persecution you say you have suffered (a court will not be interested in that) and concentrate solely on the offence with which (I assume) you will face. You need to understand the elements of the offence. If the phone must be held at some point to undertake its functions it is considered to be “hand held” (whether you were holding it or not). There is little doubt that a court will find your phone, as you have described it, to be hand held. There is also little doubt that you were using it. Some of the things you have said here simply compound your problems. For example: What I think you are missing here is that you do not have to be holding the phone to be “using” it. It’s the design of the device itself which determines whether it is “hand held” (as I explained in my first post). If it is a hand held device, then using it as a satnav on the passenger seat would see an offence committed. The revised mobile phone legislation (introduced January 2022) makes doing virtually anything with a hand-held device into an offence. Of course it’s your decision whether to defend this in court. Failure (apart from the points) will be expensive. You will pay a fine of at least half a week’s net income, a “Victim Surcharge” of 40% of that fine and prosecution costs which will be at least £620. No change out of £1k for most people. Your points situation is unfortunate. Firstly it means you cannot accept a fixed penalty even if was offered and you wanted to accept it as the six points will indeed see you liable to a six month “totting up” ban. So your case will be heard in court. If you are convicted you can only avoid disqualification if you can convince the court that “Exceptional Hardship” will be suffered by you or others if you are banned. Let me know if I can help further.
  4. You won't get a NIP for two reasons: 1. A NIP is only required if the driver was not stopped and warned at the time that a prosecution is being considered. 2. Mobile phone offences do not require a NIP in any circumstances. You may, however, get an offer of a fixed penalty (£300 and six points). You are on a sticky wicket here. If you look at the legislation (Road Vehicles (Construction and Use) Regulations 1986, Reg. 110) it says this: 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; [my emphasis] You said that your phone was on the passenger seat. It is hard, therefore, to imagine that it need not be "....held at some point during the course of making or receiving a call or performing any other interactive communication function." But I think you have a bigger problem than that. You will face testimony from two police officers who will both say they saw you using the phone. They have nothing to gain by perjuring themselves (and frankly, catching drivers using mobile phones is akin to shooting fish in a barrel). Your task will be to persuade the court they were both mistaken. On your own admission, you were using the phone and, by the definition provided in the legislation, it is not a hands-free phone. I would say you face an uphill struggle. As an aside: Why would you worry about tax? Your trade plates would have overcome the need for you to tax the car (provided you were using them in accordance with their conditions). They would not, however, have provided you with insurance cover. Nor would they have absolved the Registered Keeper (if any) from ensuring continuous cover was in place as required by s144A of the RTA.
  5. A bit late on parade here (I've been away). Magistrates have guidance that suggests where an offence warrants either a (discretionary) ban or points, and points would make the driver either liable to a "totting up" ban (12 points within three years) or revocation of a licence under the New Drivers' legislation (six points within two years of passing his first test) then points should be imposed. The purpose of the New Drivers' legislation is to provide a deterrent to new drivers from offending. To impose a ban where one would not otherwise be considered (e.g. in the circumstances you describe) would be to deliberately circumvent the New Drivers' legislation and so frustrate the will of Parliament. There is no justification for doing so and I would be extremely surprised if your son's request was sucessful.
  6. The worst that can happen, should you continue to ignore this, is that you will be convicted and sentenced in your absence. What the sentence may be is a little difficult to say as you have not told us what offence you have been charged with. There are a number of possibilities, including offences under TfL bylaws up to fraud (a criminal offence which can carry a custodial sentence). You will be informed by post (at the same address as the one you gave) and if you ignore that, enforcement action will be taken against you. This may see bailiffs or enforcement officers attempting to enforce any financial penalties and may ultimately end in your arrest (again, depending on the sentenced imposed). TfL take the abuse of staff passes very seriously and rarely offer out-of-court settlements. In any case the time for that has long passed and since you seem intent on trying to evade the matter entirely and are unwilling to engage with them anyway, the likelihood of it happening now is even smaller.
  7. Are you sure it's a summons? They are rarely used these days. More likely to be a "Single Justice Procedure Notice." But it doesn't matter. What you are considering is unwise. Anybody sending documents associated with legal proceedings has only to prove they were sent to the recipient's last known address. So long as they do that it is deemed "served". As for the name discrepancy, where did TfL get your name from? Hiding away from these things is never a good idea.
  8. If the offence was in mid-October, the police have until the corresponding date in mid-April to begin proceedings. In many areas they take all of that time, so you may have a little time to wait yet. BTW, you will not get banned for 56 days. The top "Band of seriousness" under the old sentencing guidelines (pre-April 2017) had an upper limit of 110mph. It was only for speeds in excess of that where the "grossly excessive" phrase came into play. With just a few mph lower than 109 (say up to about 104 or 105) six points is almost invariably the outcome. If you are banned I would be surprised to see one of more than 21 days, and very surprised if it exceeded 28 days.
  9. Sorry, I didn’t quite get a handle on where this happened earlier. I know the A31 quite well too but I can’t quite gather the details of your route. The B3001 meets the A31 south of the Hogs Back (at Farnham, in fact) and you would have to drive north (back towards the A3) to get to the Hogs Back, but you said you were driving southbound before you turned round. Ironically, if you were travelling southbound there and the satnav told you to turn round, you were being directed back to the A3 and precisely the area you were trying to avoid. Which is another indication of the perils of relying on satnavs. But it doesn’t really matter as far as your problem goes. There is certainly one stretch of the A31 across the Hogs Back (in the vicinity of the Hogs Back Hotel) where the two carriageways are separated as you describe. I don’t know how you came to be on the southbound carriageway at that stretch – it makes no sense to me at all. But if that’s where you were, I agree that parts of the road there may, taken in isolation, give the impression of being single carriageway. I imagine you were somewhere around here: https://www.instantstreetview.com/@51.226533,-0.714861,287.57h,-5.42p,0z,I0xw6LgdEVIp9yCUkj_yKQ As I said, I don’t know where exactly you might have joined the A31 southbound to approach the Hogs Back (the A31 begins a few miles further north, where it splits from the A3). But certainly at this point (north of the Hogs Back) it is clearly a dual carriageway: https://www.instantstreetview.com/@51.226745,-0.695772,287.57h,-5.42p,0.42z,05spBYvtERib55HdiW5Pag If you follow the GSV from there you will come to the stretch where I believe you turned round. But there is no indication, between those two points, that the road has become a two way single carriageway. A little further on there is a junction with the road to Ash Green and it is clear at that point that the road is two lanes in the same direction (by virtue of the arrows in the road): https://www.instantstreetview.com/@51.226733,-0.709591,287.57h,-5.42p,0z,cJ0qtfiZgThCa_GzPScb9A A little further still (just after the “Hotel” signpost on the left) the road opens out again and the opposite carriageway becomes clearly visible. I drive that stretch quite often and have done so both during the day and at night and from my perspective there is absolutely no reason to believe the carriageway has reverted to both way running. As well as that, as you can see from the GSV shots, the road is quite narrow there and I was astonished to learn that you performed a U-turn in the dark on that stretch. If you do return to the scene, see if you can find any indication as you travel southbound that the road becomes a single carriageway. I’m sure you won’t. If you take this matter to court it will be tried in a Magistrates’ Court local to that area and the Magistrates will very likely to be aware of the road’s layout. My view remains the same. You should not have performed a U-turn at that location and if the area was unfamiliar, you should have waited until a more suitable location to turn round was available. If you are offered a fixed penalty I should grab it with both hands as it is the best offer you will get. If it goes to court, I would recommend a guilty plea with as little said about why and where you turned round as possible.
  10. Careless Driving is a very “subjective” offence, but the legislation says simply that if your driving falls “below that expected of a competent and careful driver” then you are guilty. Of course competent and careful drivers do not drive the wrong way on a dual carriageway. The first judgement will come from the police. They have the option of offering you a course or fixed penalty (£100 and three points). Unlike speeding (where the offer of an out-of-court disposal (OOCD) is quite prescriptive based on the limit and excess speed) careless driving is not so clear cut and is very much judged on a case-by-case basis. However, the police use some general guidance and I I believe their current rule is that to qualify for an OOCD the incident there must be: no victims no collisions no public complaint about the driving. the incident must be observed by officers (rather than only the public) In that respect it seems your incident may qualify. However, driving the wrong way down a dual carriageway is bordering on dangerous driving, as intimated by the officer. Although there were no victims and no collisions this was more luck than judgement and probably more down to the good fortune that the police intercepted you before any harm was done. If there had been any other vehicles on your carriageway there would almost certainly have been a collision and the consequences of what would have been a head-on smash could have been catastrophic. Your explanation of the event does little to mitigate the offence. I know you are not blaming the satnav instructions as such but you are giving them quite a bit of weight: “…therefore I don't think following it's instruction was literally an act of carelessness or recklessness on my part.” I would disagree. Following its instructions unquestionably is careless. This is especially so in the circumstances you describe. I know Junction 10 on the M25 very well. There have been major works in progress for some months and they are not due for completion until summer 2025. The junction is being completely remodelled and the new layout will cover a much larger area than the current arrangements. Different sections are often closed at night with diversions such as you encountered and it is impossible for satnav systems to be updated with the constantly changing relevant information. More than that, there is adequate signage from each of the four directions approaching the junction; there are narrow lanes and a restricted speed limit throughout. It is an extensive site involving major work. Quite simply, that vicinity – especially if you are re-routed because of road closures - it is not a place to depend on a satnav. You have to look out of the window. In my view, what you are saying actually aggravates the offence. Despite the obvious and apparent hazards, you still expected the satnav to see you safely through this major junction, even when it provided an instruction that was clearly inappropriate. For all these reasons I would be surprised if the police offered you an OOCD. If they don’t, you will be prosecuted in court and here are the Magistrates’ Sentencing Guidelines for the offence: https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/careless-driving-drive-without-due-care-and-attention-revised-2017/ You will see from that guidance that your offence does not seem to exhibit either “Higher Culpability “ or “Greater Harm” and so should be placed in the lowest category of seriousness. However, you should also note this: “Where an offence does not fall squarely into a category, individual factors may require a degree of weighting before making an overall assessment and determining the appropriate offence category.” You might argue that your offence falls squarely into Category 3. However, the guidance is exactly that and I have little doubt that if Magistrates hear that you ended up driving the wrong way down a dual carriageway at 1am and only stopped when intercepted by the police, they will almost certainly add their own “weighting” to the offence and will probably place it in Category 2. This will see five or six points and a fine of one week’s income (reduced by a third if you plead guilty). "Also if anybody's got any idea of whether my observations about the sat navs inconsistent behaviour regarding turning people round on dual carriageways ( ie using roundabouts on most of them but not this specific one), would be accepted as extenuating circumstances, - any opinions or comments from people, would be much appreciated." The ideas I have are quite straightforward – they are not to be relied upon. The ultimate responsibility for his driving standards and any outcome resulting from them rests solely with the driver. This is especially so in the circumstances you describe, where it is clear (or at least should be clear to a competent and careful driver) that a satnav may not have all the most up to date information required. Any attempt to use the satnav’s instructions as mitigation will simply demonstrate to a court that the driver was not paying sufficient attention to his surroundings. Of course all this is only my view, based on the brief description you provided. It would be helpful if you informed us of the outcome, to add to the forums knowledge base.
  11. And I've just noticed your remarks about the letter. It should give you details of the alleged offence (citing the legislation), how to pay the penalty (should that be your choice) and how to appeal (either to an arbitrator if it is appropriate or in the Magistrates' Court). Any chance you could post a redacted copy on here?
  12. Unfortunately, as I said in my first reply, there is not a simple answer to the definition of littering. If the allegation is “littering” and it’s not being made under railway bylaws, then I suspect it is under s87 of the Environmental Protection Act. This is here: https://www.legislation.gov.uk/ukpga/1990/43/section/87 There is an interesting report by the Campaign for the Protection of Rural England. It’s a lengthy tome, but the relevant passage begins on page 14: https://www.cpre.org.uk/wp-content/uploads/2020/05/CPRE-Litter-Law-Report.pdf There are a number of points you could take on board: The High Court tried to define litter in the case of Westminster City Council v. Riding. The court took an approach based on the term’s natural or ordinary meaning, stating that the word ‘litter’ in the EPA 1990: ‘should be given its natural meaning of miscellaneous rubbish left lying about. Rubbish left lying about can consist of all manner of things including domestic household waste, commercial waste, street waste and no doubt other waste not falling within such description’. It goes on to mention “Exclusions” and in particular this: There are several categories of rubbish, all of which may also be regarded as a social problem, but, nonetheless, do not fall within the legal definition of ‘litter’ – the definition is relevant here for litter authorities, whose role it is to clear such waste. Categories of rubbish, as distinguished from litter, include: Detritus ‘comprises small, broken down particles of synthetic and natural materials, including dust, mud, soil, grit, gravel, stones, rotted leaf and vegetable residues, and fragments of twigs, glass, plastic and other finely divided materials. Leaf and blossom falls are to be regarded as detritus once they have substantially lost their structure and have become mushy or fragmented’. There is certainly an argument to be made that phlegm might fall into this category. It is interesting to note that dog fouling is specifically excluded from the litter laws. It has its own separate legislation and a person suspected of allowing a dog to foul the footpath or road cannot be convicted under the littering legislation. But I think more important from your son’s current situation (having been issued with a fixed penalty) is the guidance that DEFRA issued in 2015 to enforcement officers. It clearly states that there should be no fixed penalty notice (FPN) where the following circumstances apply: Where it is accidental littering, for example if something falls from someone’s pocket it’s not in the public interest to do so; the offender is vulnerable; the offence is trivial Of course none of these fit your son’s circumstances precisely, but they give you a flavour of how the law is likely to be interpreted. Furthermore, although guidance is not law, it remains persuasive to those making decisions. Have a read of the CPRE’s paper down to about page 20 to see more details. If I were you I would firstly try to engage with the LA emphasising that you do not consider that your son has committed a littering offence at all. But also add details about his condition, his vulnerability and the triviality of his action. I would try to make an analogy with someone vomiting on the pavement. It’s unpleasant, it’s would be nice if nobody did it, but occasionally it’s going to happen. Is it “littering”? I can’t see a court agreeing that it is and nothing I have found supports it.I think there is a very strong link between that and your son's actions. I have an idea that, when all the circumstances are taken into account, the LA will not run with this. The hurdle you must clear is to get it examined by somebody who knows what they are talking about as, once again without being unkind, many LA employees are poorly trained in such matters. Hope this helps. Do let us know how it goes as it helps us when advising others.
  13. Unfortunately it's not that straightforward. There is no single definition of "Litter". Some legislation gives examples of what could be considered litter. It does not include material deposited by spitting but that is not an exhaustive list. As mentioned above, there have been a couple of threads where the definition of litter was discussed. Somebody suggested as a "rule of thumb" that if you can pick it up, it's litter, if you can't then it's not. This would seemingly rule out urine and phlegm, but this simple definition is not mentioned anywhere in any case law that I know of. There is certainly a strong case to suggest that urine is not litter. Whilst it's unpleasant, the litter laws were framed to prevent a different kind of "mischief". I would suggest that a similar principle could be applied to phlegm. I would think that if your son declined to pay the fixed penalty the council would look long and hard before prosecuting. You should let them know about his difficulties and also that they may find it hard to secure a conviction in the circumstances you describe. That said, once the FP has been declined he is at the mercy of the court. Being under 18 the matter will go before the Youth Court and whilst the burden of proof remains the same, the range of penalties is more restricted than in the adult court. I would like to think, however, that the council would take the view that for a couple of reasons a conviction may be difficult to secure but in any case that a prosecution is not "in the public interest". Local Authorities usually employ "Civil Enforcement Officers" and, without being unkind, their training is often not what it should be, especially when their decisions can result in criminal prosecutions. It's a bit late now but if I get time tomorrow I'll have a further think and look at the legislation and some case law (if I can find it).
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